CEDH · PRESS;GENERAL;ENG — 10 décembre 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     630   10.12.2002   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF DICLE ON BEHALF OF THE DEP (DEMOCRATIC PARTY) v. TURKEY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Dicle on behalf of the DEP (DEMOCRATIC PARTY) v. Turkey (application no. 25141/94).   The Court held unanimously that: ●     there had been a violation de Article 11 (freedom assembly and association) of the European Convention on Human Rights; ●     it was unnecessary to examine whether there had been a violation of Articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression) and 14 (prohibition of discrimination) of the Convention; ●     Article 6 (right to a fair trial) was inapplicable.   Under Article 41 (just satisfaction) of the Convention, the Court, acting on a majority, awarded Mr Hatip Dicle 200,000 euros (EUR) for non-pecuniary damage, to be transferred to the members and leaders of the DEP , and EUR 10,000 for costs and expenses. (The judgment is in French only.)   1.     Principal facts   Hatip Dicle is a Turkish national who was born in 1955. His application has been lodged in his own name and on behalf of the Democracy Party ( Demokrasi Partisi – DEP ), of which he was the president until its dissolution by the Constitutional Court in 1994.   The DEP was founded on 7 May 1993. It was joined by 18 members of the Turkish Parliament who had previously been in the Work of the People Party ( Halkin Emegi Partisi – HEP ), which was dissolved in July 1993, and who had been elected in 1991 as candidates of the Social Democrat Party ( SHP ).   On 2 November 1993 the Principal Public Prosecutor brought an action for the dissolution of the DEP on the ground that it had infringed constitutional principles and the Law on Political Parties in a written declaration that had been made by its central committee and speeches by its former president at two meetings in Germany and Iraq. The DEP ’s lawyers requested the Constitutional Court to hold a hearing. They argued in their submissions that it would be contrary to international law to dissolve the party and contested the legality and evidential value of video recordings that had been made at the meetings.   On 16 June 1994 the Constitutional Court ordered the dissolution of the DEP on the ground that its activities were liable to undermine the territorial integrity of the State and the unity of the nation. Mr Dicle and the 13 members of the DEP with seats in the Turkish National Assembly were disqualified from parliamentary office. The Constitutional Court found that reference had been made in the declaration and speeches to the existence of a separate Kurdish people in Turkey fighting for their independence, and that the acceptance of a Kurdish identity with all the consequences that entailed, namely the creation of an independent state and the destruction of the existing State, had been advocated. It also considered that there had been references to equality between two nations and that the acts of a terrorist organisation had been presented as a struggle for independence. The Constitutional Court said in conclusion that the activities of the DEP were among those that could be restricted under paragraph 2 of Article 11 of the European Convention on Human Rights.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 23 August 1994. It was declared admissible by the Commission on 2 September 1996 and brought before the Court on 1 November 1999.   Judgment was given by a Chamber of 7 judges, composed as follows:   Antonio Pastor Ridruejo (Spanish), President , Elisabeth Palm (Swedish), Marc Fischbach (Luxemburger), Josep Casadevall (Andorran), Rait Maruste (Estonian), Stanislav Pavlovschi (Moldovan), judges , Feyyaz Gölcüklü (Turkish), ad hoc judge , and also Michael O’Boyle , Section Registrar .     3.     Summary of the judgment [2]   Complaints The applicant alleged that the dissolution of the DEP and the associated penalties had infringed Articles 9, 10 and 11 of the Convention. He also complained of discrimination against the DEP on the ground of the political opinions it represented, contrary to Article 14. Lastly, relying on Article 6 § 1, the applicant complained of the lack of a public hearing.   Decision of the Court   Article 11 The Court noted at the outset that the Constitutional Court had failed to examine in its judgment dissolving the party whether the DEP ’s programme and constitution were legal. It had confined itself to deciding whether its political activities contravened relevant regulations and had relied on three declarations in reaching its decision. Consequently, the Court considered that it need only examine those declarations and rejected the Government’s request for it to widen the scope of its examination to encompass the criminal convictions of various members of parliament from the party following its dissolution.   As to whether the DEP pursued aims that contravened democratic principles, the Court noted that the written declaration and the speeches that had led to the dissolution of the party lent towards recognition of Kurdish identity and were fiercely critical of governmental policy towards citizens of Kurdish origin. Nevertheless, it did not find those declarations to be contrary to fundamental principles and reiterated that if democracy was to work properly, it was essential that political bodies be allowed make public proposals, even if they conflicted with the main planks of governmental policy or prevailing public opinion. Furthermore, the Court did not find persuasive the Government’s argument that the DEP ’s call for autonomy or separatism was tantamount to support for terrorist acts. In its view, the Constitutional Court had not established to the requisite standard, in its judgment dissolving the DEP, that the DEP was seeking to undermine democracy in Turkey through its political policies. Nor had it been suggested that the DEP had any real prospects of establishing a system of government that did not meet with the approval of all the players on the political stage.   As to whether the DEP had carried on its political campaign by lawful and democratic means or whether its leaders had advocated the use of violence as a political tool, the Court had to examine whether, as the Government had maintained, there had been any incitement to ethnic hatred, rebellion or violence. With regard to the speech that had been made at Bonn and the written declaration issued by the central committee the Court observed that although they were severely critical of certain aspects of the Government’s performance, they had not expressed any explicit support or approval of the use of violence for political ends. The Court considered that, though fierce, such political criticism of the Turkish authorities could not in itself constitute evidence that the DEP was equivalent to an armed group implicated in acts of violence. The Court was not persuaded that the aim of the party in making those declarations was other than to fulfil its duty of voicing the concerns of its voters. It consequently considered that there had been no “pressing social need” to dissolve the DEP on account of those two declarations.   As regards the declaration made by the former president of the DEP in Iraq, the Court noted that it conveyed three messages: firstly, that a separate unified Kurdish state was desirable; secondly, that the activities of the armed movement within the PKK compared to a war to liberate north Kurdistan and to found a Kurdish state there; and, lastly, that the DEP ’s political opponents, in particular the Turkish Government, were disreputable. The Court considered that the second and third messages amounted to approval of the use of force as a political tool and a call to use force. In the circumstances existing at the material time those words were capable of inspiring a deep irrational hatred of those who were presented as the enemies of the population of Kurdish origin. Recourse to violence appeared to have been presented as a necessary and justified means of obtaining freedom from the enemy. The Court found that the measure taken in respect of that the declaration met a “pressing social need”. It noted that criminal proceedings had been taken against the maker of the statement.   However, it considered that what was at issue was a single speech by a former leader of the party that had been made overseas in a language other than Turkish and to an audience that was not directly concerned by the situation in Turkey. Its potential impact on “national security” public “order” or the “territorial integrity” of Turkey was therefore very limited. Accordingly, the Court found that that speech could not by itself justify so general a penalty being imposed as the dissolution of an entire political party, particularly as the maker of the speech had already been prosecuted. Consequently, the dissolution of the DEP on account of the speech made in Iraq could not be regarded as proportionate to the aims pursued.   Accordingly, the Court held that the dissolution of the DEP could not be regarded as “necessary in a democratic society” and that there had been a violation of Article 11.   Articles 9, 10 and 14 Since these complaints concerned the same matters as those examined under Article 11, the Court considered it unnecessary to examine them separately   Article 6 The Court held that the complaints were incompatible with the provisions of Article 6, since there was no dispute in the case before it over a civil right. Further, the right to the peaceful enjoyment of the DEP ’s possessions had not been in issue before the Constitutional Court. Consequently, Article 6 was not applicable.     Judge Gölcüklü expressed a partly concurring and partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court.