CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 30 janvier 1998

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color:#0069d6 }         CASE OF UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY   (133/1996/752/951)                       JUDGMENT   STRASBOURG     30 January 1998     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.   List of Agents     Belgium : Etablissements Emile Bruylant (rue de la Régence 67,   B-1000 Bruxelles)   Luxembourg : Librairie Promoculture (14, rue Duchscher   (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)   The Netherlands : B.V. Juridische Boekhandel & Antiquariaat   A. Jongbloed & Zoon (Noordeinde «39, NL-2514 GC 's-Gravenhage) SUMMARY [1] Judgment delivered by a Grand Chamber Turkey – dissolution of a political party by the Constitutional Court I.   Article 11 of the Convention A.   Whether Article 11 was applicable Wording of Article 11: showed that trade unions were but one example among others of form in which right to freedom of association could be exercised. Political parties were a form of association essential to proper functioning of democracy – in view of importance of democracy in Convention system, there could be no doubt that political parties were within scope of Article 11. An association was not excluded from protection afforded by Convention simply because its activities were regarded by national authorities as undermining constitutional structures of State and calling for imposition of restrictions – Article 1 of Convention: made no distinction as to type of rule or measure concerned and did not exclude any part of member States’ “jurisdiction” from scrutiny under Convention – political and institutional organisation of member States had accordingly to respect rights and principles enshrined in Convention – compromise between requirements of defending democratic society and individual rights: inherent in system of Convention. Protection afforded by Article 11: lasted for an association’s entire life and dissolution of an association by a country’s authorities had accordingly to satisfy requirements of paragraph 2. B.   Compliance with Article 11 1.   Whether there had been an interference With rights of all three applicants. 2.   Whether interference was justified (a)   “Prescribed by law” Not disputed. (b)   Legitimate aim Protection of “national security”. (c)   “Necessary in a democratic society” (i)   General principles Article 11 had also to be considered in light of Article 10 – fact that their activities formed part of a collective exercise of freedom of expression in itself entitled political parties to seek protection of Articles 10 and 11. Political parties made irreplaceable contribution to political debate, which was at very core of concept of democratic society. Democracy: without doubt a fundamental feature of “European public order” – Preamble to Convention: established very clear connection between Convention and democracy – democracy: appeared to be only political model contemplated by Convention and, accordingly, only one compatible with it – Court had identified certain provisions of Convention as being characteristic of democratic society. Exceptions set out in Article 11: to be construed strictly where political parties were concerned – only limited margin of appreciation, which went hand in hand with rigorous European supervision. (ii)   Application of principles to the present case TBKP had been dissolved even before it had been able to start its activities, solely on basis of its constitution and programme. Political party’s choice of name: could not in principle justify a measure as drastic as dissolution, in absence of other relevant and sufficient circumstances – absence of any concrete evidence to show that in choosing to call itself “communist”, TBKP had opted for policy that represented real threat to Turkish society or Turkish State. TBKP ’s programme in so far as it concerned citizens of Kurdish origin – no justification for hindering a political group solely because it sought to debate in public situation of part of State’s population and to take part in nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned. No evidence enabling Court to conclude, in absence of any activity by TBKP , that party had borne any responsibility for problems which terrorism posed in Turkey – no need to bring Article 17 into play. Conclusion : violation (unanimously). II.   Articles 9, 10, 14 and 18 of the Convention Complaints not pursued in proceedings before Court. Conclusion : not necessary to decide this issue (unanimously). III.   Articles 1 and 3 of Protocol N o . 1 Measures complained of: incidental effects of TBKP ’s dissolution. Conclusion : not necessary to decide this issue (unanimously). IV.   Article 50 of the Convention A.   Non-pecuniary damage TBKP : no causal link with violation found. Mr Sargın and Mr Ya ğ cı: finding of a violation constituted sufficient compensation. B.   Costs and expenses Awarded in part.   Conclusion : respondent State to pay applicants specified sum for costs and expenses (unanimously). COURT'S CASE-LAW REFERRED TO 14.11.1960 and 1.7.1961, Lawless v. Ireland; 7.12.1976, Kjeldsen, Busk Madsen and Pedersen v. Denmark; 7.12.1976, Handyside v. the United Kingdom; 18.1.1978, Ireland v. the United Kingdom; 6.9.1978, Klass and Others v. Germany; 26.4.1979, Sunday Times v. the United Kingdom (no. 1); 13.5.1980, Artico v. Italy; 13.8.1981, Young, James and Webster v. the United Kingdom; 8.7.1986, Lingens v. Austria; 2.3.1987, Mathieu-Mohin and Clerfayt v. Belgium; 7.7.1989, Soering v. the United Kingdom; 23.4.1992, Castells v. Spain; 29.10.1992, Open Door and Dublin Well Woman v. Ireland; 16.12.1992, Hadjianastassiou v. Greece; 24.11.1993, Informationsverein Lentia and Others v. Austria; 23.9.1994, Jersild v. Denmark; 23.3.1995, Loizidou v. Turkey; 26.9.1995, Vogt v. Germany; 16.9.1996, Akdivar and Others v. Turkey; 25.11.1996, Wingrove v. the United Kingdom; 18.12.1996, Aksoy v. Turkey; 1.7.1997, Gitonas and Others v. Greece     In the case of United Communist Party of Turkey and Others v.   Turkey [2] , The European Court of Human Rights, sitting, in accordance with Rule   51 of Rules of Court A [3] , as a Grand Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   F. Gölcüklü ,   Mr   F. Matscher ,   Mr   R. Macdonald,   Mr   C. Russo ,   Mr   N. Valticos ,   Mrs   E. Palm ,   Mr   I. Foighel,   Mr   R. Pekkanen ,   Mr   A.N. Loizou ,   Mr   J. M. Morenilla,   Sir   John Freeland ,   Mr   A.B. Baka ,   Mr   M.A. Lopes Rocha ,   Mr   L. Wildhaber ,   Mr   J. Makarczyk ,   Mr   P. Kūris ,   Mr   U. Lōhmus,   Mr   P. van Dijk, and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 26 September 1997 and 27 January 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 28 October 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 19392/92) against the Republic of Turkey lodged with the Commission under Article 25 by a political party, the United Communist Party of Turkey, and two Turkish nationals, Mr Nihat Sargın and Mr Nabi Yağcı, on 7 January 1992. The Commission’s request referred to Articles 44 and 48 (a) of the Convention and to Rule 32 of Rules of Court A. The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 11 of the Convention. 2.     In response to the enquiry made in accordance with Rule 33 § 3 (d), the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule   30). The lawyers were given leave by the President to use the Turkish language in the written and oral stages of the proceedings (Rule 27 § 3). 3.     The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43 of the Convention), and Mr   R.   Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 29 October 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr B. Walsh, Mr C. Russo, Mr   I.   Foighel, Mr A.N. Loizou, Mr J. Makarczyk, Mr P. Kūris and Mr   P.   van Dijk (Article 43 in fine of the Convention and Rule 21 § 5). 4.     As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicants’ lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicants’ memorial on 3 June 1997 and the Government’s memorial on 18 June. 5.     On 28 August 1997 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51). The Grand Chamber to be constituted included ex officio Mr Ryssdal, the President of the Court, and Mr R. Bernhardt, the Vice-President, together with the members and the four substitutes of the original Chamber, the latter being Mr A.B. Baka, Mr   M.A. Lopes Rocha, Mr R. Pekkanen and Mr   R.   Macdonald (Rule 51 §   2   (a) and (b)). On the same day the President, in the presence of the Registrar, drew by lot the names of the seven additional members needed to complete the Grand Chamber, namely Mr   F.   Matscher, Mr N. Valticos, Mrs   E. Palm, Mr J.M. Morenilla, Sir   John   Freeland, Mr L. Wildhaber and Mr U. Lōhmus (Rule 51§   2 (c)). Subsequently Mr   Ryssdal and Mr Walsh were unable to take part in the further consideration of the case (Rules 24 §   1 and 51 § 3). Mr Ryssdal’s place as President of the Grand Chamber was taken by Mr   Bernhardt (Rules   21 § 6 and 51 § 6). 6.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 September 1997. The Court had held a preparatory meeting beforehand.   There appeared before the Court: (a)    for the Government Mr   A. Gündüz , Professor of International Law,       University of Marmara,   Agent , Mrs D. Akçay , Deputy Permanent Representative       of Turkey to the Council of Europe, Mr   M. Özmen , Ministry of Foreign Affairs, Mr   Ş. Alpaslan , Doctor of Law, Mr   A. Kaya , Ministry of Justice, Ms   A. Emüler , Ministry of Foreign Affairs, Ms   Y. Renda , Ministry of Foreign Affairs, Mrs   N. Ayman , Ministry of the Interior, Mr   N. Alkan , Ministry of the Interior,   Advisers ; (b)    for the Commission Mr   N . Bratza ,   Delegate ; (c)   for the applicants Mr   G. Dinç , of the İzmir Bar, Mr   E. Sansal , of the Ankara Bar,   Counsel .   The Court heard addresses by Mr Bratza , Mr Dinç , Mr Sansal , Mrs   Akçay and Mr Özmen. AS TO THE FACTS I.   circumstances of the case 7.     The United Communist Party of Turkey (“the TBKP ”), the first applicant, was a political party that was dissolved by the Constitutional Court (see paragraph 10 below). Mr   Nihat Sargın and Mr Nabi Yağcı, the second and third applicants, were respectively Chairman and General Secretary of the TBKP . They live in Istanbul. 8.     The TBKP was formed on 4 June 1990. On the same day, its constitution and programme were submitted to the office of Principal State Counsel at the Court of Cassation for assessment of their compatibility with the Constitution and Law no. 2820 on the regulation of political parties (“Law no. 2820” – see paragraph 12 below). A.   The application to have the TBKP dissolved 9.     On 14 June 1990, when the TBKP was preparing to participate in a general election, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for an order dissolving the TBKP . He accused the party of having sought to establish the domination of one social class over the others (Articles 6, 10 and 14 and former Article 68 of the Constitution and section 78 of Law no. 2820), of having incorporated the word “communist” into its name (contrary to section 96(3) of Law no. 2820), of having carried on activities likely to undermine the territorial integrity of the State and the unity of the nation (Articles 2, 3 and 66 and former Article 68 of the Constitution, and sections   78 and 81 of Law no. 2820) and of having declared itself to be the successor to a previously dissolved political party, the Turkish Workers’ Party (section 96(2) of Law no. 2820). In support of his application Principal State Counsel relied in particular on passages from the TBKP ’s programme, mainly taken from a chapter entitled “Towards a peaceful, democratic and fair solution for the Kurdish problem”; that chapter read as follows: “The existence of the Kurds and their legitimate rights have been denied ever since the Republic was founded, although the national war of independence was waged with their support. The authorities have responded to the awakening of Kurdish national consciousness with bans, oppression and terror. Racist, militarist and chauvinistic policies have exacerbated the Kurdish problem. That fact both constitutes an obstacle to the democratisation of Turkey and serves the interests of the international imperialist and militaristic forces seeking to heighten tension in the Middle East, set peoples against each other and propel Turkey into military adventures. The Kurdish problem is a political one arising from the denial of the Kurdish people’s existence, national identity and rights. It therefore cannot be resolved by oppression, terror and military means. Recourse to violence means that the right to self-determination, which is a natural and inalienable right of all peoples, is not exercised jointly, but separately and unilaterally. The remedy for this problem is political. If the oppression of the Kurdish people and discrimination against them are to end, Turks and Kurds must unite. The TBKP will strive for a peaceful, democratic and fair solution of the Kurdish problem, so that the Kurdish and Turkish peoples may live together of their free will within the borders of the Turkish Republic, on the basis of equal rights and with a view to democratic restructuring founded on their common interests. The solution of the Kurdish problem must be based on the free will of the Kurds and take into account the common interests of the Turkish and Kurdish nations and contribute to the democratisation of Turkey and peace in the Middle East. A solution to the Kurdish problem will only be found if the parties concerned are able to express their opinions freely, if they agree not to resort to violence in any form in order to resolve the problem and if they are able to take part in politics with their own national identity. The solution of the Kurdish problem will require time. In the immediate future, priority must be given to ending military and political pressure on the Kurds, protecting the lives of Kurdish citizens, bringing the state of emergency to an end, abandoning the ‘village guards’ system and lifting bans on the Kurdish language and Kurdish culture. The problem should be freely discussed. The existence of the Kurds must be acknowledged in the Constitution. Without a solution of the Kurdish problem, democratic renewal cannot take place in Turkey. Any solution will entail a fight for the democratisation of Turkey.” Two other passages relied on by Principal State Counsel read as follows: “... the United Communist Party of Turkey is the party of the working class, formed from the merger of the Turkish Workers’ Party and the Turkish Communist Party. ... The cultural revival will be fashioned by, on the one hand, the reciprocal influence of contemporary universal culture and, on the other, Turkish and Kurdish national values, the heritage of the Anatolian civilisations, the humanist elements of Islamic culture and all the values developed by our people in their effort to evolve with their times.” The Turkish Workers’ Party referred to above had been dissolved on 16   October 1981 on grounds similar to those relied on against the TBKP . B.     Dissolution of the TBKP 10.     On 16 July 1991 the Constitutional Court made an order dissolving the TBKP , which entailed ipso jure the liquidation of the party and the transfer of its assets to the Treasury, in accordance with section 107(1) of Law no.   2820. The order was published in the Official Gazette on 28   January 1992. As a consequence, the founders and managers of the party were banned from holding similar office in any other political body (Article   69 of the Constitution and section 95(1) of Law no. 2820 – see paragraph 11 below). The Constitutional Court firstly rejected the submission that the TBKP maintained that one social class, the proletariat, was superior to the others. Referring to the party’s constitution, modern works on Marxist ideology and contemporary political ideas, it held that the TBKP satisfied the requirements of democracy, which was based on political pluralism, universal suffrage and freedom to take part in politics. The court also rejected the argument, based on section 96(2) of Law no.   2820, that no political party may claim to be the successor to a party that has previously been dissolved. In its view, it was entirely natural and consistent with the concept of democracy for a political party to claim the cultural heritage of past movements and currents of political thought. The TBKP had accordingly not infringed the provision relied on by reason only of its intention of drawing on the experience and achievements of Marxist institutions. The Constitutional Court went on to hold that the mere fact that a political party included in its name a word prohibited by section 96(3) of Law no.   2820, as the TBKP had done in the present case, sufficed to trigger the application of that provision and consequently to entail the dissolution of the party concerned. As to the allegation that the TBKP ’s constitution and programme contained statements likely to undermine the territorial integrity of the State and the unity of the nation, the Constitutional Court noted, inter alia , that those documents referred to two nations: the Kurdish nation and the Turkish nation. But it could not be accepted that there were two nations within the Republic of Turkey, whose citizens, whatever their ethnic origin, had Turkish nationality. In reality the proposals in the party constitution covering support for non-Turkish languages and cultures were intended to create minorities, to the detriment of the unity of the Turkish nation. Reiterating that self-determination and regional autonomy were prohibited by the Constitution, the Constitutional Court said that the State was unitary, the country indivisible and that there was only one nation. It considered that national unity was achieved through the integration of communities and individuals who, irrespective of their ethnic origin and on an equal footing, formed the nation and founded the State. In Turkey there were no “minorities” or “national minorities”, other than those referred to in the Treaty of Lausanne and the friendship treaty between Turkey and Bulgaria, and there were no constitutional or legislative provisions allowing distinctions to be made between citizens. Like all nationals of foreign descent, nationals of Kurdish origin could express their identity, but the Constitution and the law precluded them from forming a nation or a minority distinct from the Turkish nation. Consequently, objectives which, like those of the TBKP , encouraged separatism and the division of the Turkish nation were unacceptable and justified dissolving the party concerned. II.   Relevant domestic law The Constitution 11.     At the material time 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 constitutes with its territory and nation, an indivisible whole. The official language is Turkish.” Article 6 “Sovereignty resides 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   “Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose...   Political parties shall be an indispensable part of the democratic political system.   Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law.   The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation, human rights, national sovereignty or the principles of a democratic secular Republic.   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 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, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...” B.     Law no. 2820 on the regulation of political parties 12.     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 96(3) “No political party shall be formed with the name ‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the name of a religion, language, race, sect or region, or a name including any of the above words or similar ones.” Section 101 “The Constitutional Court shall dissolve a political party where (a)     the party’s programme or constitution ... is contrary to the provisions of Chapter   4 of this Law; or (b)     its 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 the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions...” 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, referred to in section 101, includes in particular sections 90(1) and 96(3), which are reproduced above. PROCEEDINGS BEFORE THE COMMISSION 13.     The applicants applied to the Commission on 7 January 1992. They maintained that the dissolution of the TBKP by the Constitutional Court had infringed     (a)     Articles 6 § 2, 9, 10 and 11 of the Convention, taken individually and together with Articles 14 and (in respect of Articles   9, 10 and 11) 18 of the Convention; and   (b)     Articles 1 and 3 of Protocol No. 1. 14.     On 6 December 1994 the Commission declared the complaint under Article 6 § 2 of the Convention inadmissible and the remainder of the application (no.   19392/92) admissible. 15.     In its report of 3 September 1996 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 11 of the Convention, that no separate issue arose under Articles 9 and 10 and that there was no need 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 [4] . FINAL SUBMISSIONS TO THE COURT 16.     In their memorial, the Government “... ask the Court to declare that there has been no violation of Articles 9, 10, 11, 14 or 18 of the Convention or of Articles 1 or 3 of Protocol No. 1”. 17.     The applicants sought a declaration that “the facts on which the application is based ... constitute a violation of Article 11 of the Convention and of Articles 1 and 3 of Protocol No. 1”. AS TO THE LAW I.   ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 18.     The applicants maintained that the fact that the United Communist Party of Turkey (“the TBKP ”) had been dissolved and its leaders – including Mr   Sargın and Mr Ya ğ cı – 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 Government 19.     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, rather than apply Article   11. Even a cursory examination of the Convention showed that neither Article 11 nor any other Article made any mention of political parties or referred to the States’ constitutional structures. It was significant that the only Article containing a reference to political institutions was in Protocol   No. 1 (Article 3) and did not confer any right on individuals as it was worded so as to create an obligation on the States. Unlike other forms of association, which were usually dealt with in national constitutions as manifestations of freedom of association, the provisions concerning political parties were in general to be found in the part relating to fundamental constitutional structures. That was so, for instance, in Germany, Denmark, Spain, France, Italy and Greece. 20.     The constitution and programme of the TBKP were clearly incompatible with Turkey’s fundamental constitutional principles. By choosing to call itself “communist”, the TBKP perforce referred to a subversive doctrine and a totalitarian political goal that undermined Turkey’s political and territorial unity and jeopardised the fundamental principles of its public law, such as secularism. “Communism” invariably presupposed seizing power and aimed to establish a political order that would be unacceptable, not just in Turkey but also in the other member States of the Council of Europe. Further, the use of certain names was also proscribed in other legal systems in the West. In that respect, the Government referred to the German, Polish and Portuguese Constitutions. In any event, whatever the intentions of the TBKP and its leaders in choosing the name “communist” in 1990 (after the fall of the Berlin Wall) may have been, that name could not, in the Government’s view, be considered devoid of political meaning. 21.     Furthermore, if the TBKP were able to achieve its political aims, Turkey’s territorial and national integrity would be seriously undermined. By drawing a distinction in its constitution and programme between Turks and Kurds, referring to the Kurds’ “national” identity, requesting constitutional recognition of “the existence of the Kurds”, describing the Kurds as a “nation” and asserting their right to self-determination, the TBKP had opened up a split that would destroy the basis of citizenship, which was independent of ethnic origin. As that was tantamount to challenging the very principles underpinning 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 TBKP had called those institutions or principles into question, it could not seek application of the Convention or its Protocols. At the very least, Article 17 of the Convention should be applied in respect of the TBKP since the party had called into question both the ba