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Role of the European Court of Human Rights in the Turkish Constitutional Court’s Rulings Regarding the Freedom of Association

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Rule of Law, Human Rights and Judicial Control of Power

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 61))

Abstract

The article titled “Role of the European Court Of Human Rights in the Turkish Constitutional Court’s Rulings Regarding the Freedom of Association” illustrates the impact that the European human rights standards have had on the Turkish Constitutional Court in Turkey. First, the article briefly examines the salient characteristics of the 1982 Constitution regarding rights and freedoms and the place of international human rights law in domestic law. Second, it discusses the Turkish Constitutional Court’s approach to the freedom of association. This article reveals that the European human rights documents and the rulings of the European Court of Human Rights are indispensable elements for Turkish legislation and for the Turkish Constitutional Court. Indeed, the Constitutional Court’s approach is critically important in providing consistency between domestic law and international human rights standards. However, it seems that sometimes the Court hesitates to fully embrace them by accepting the broad discretionary power of Parliament.

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Notes

  1. 1.

    Article 68-Citizens have the right to form political parties and in accordance with the established procedure to join and withdraw from them. One must be over 18 years of age to become a member of a party.

    Political parties are indispensable elements of democratic political life.

    Political parties may be formed without prior permission and shall pursue their activities in accordance with the provisions set forth in the Constitution and law.

    The statutes and programs, as well as the activities of political parties shall not be in conflict with the independence of the state, its indivisible integrity with its territory and nation, human rights, the principles of equality and rule of law, sovereignty of the nation, the principles of the democratic and secular republic; they shall not aim to protect or establish class or group dictatorship or dictatorship of any kind, nor shall they incite citizens to crime.

    Judges and prosecutors, members of higher judicial organs including those of the Court of Accounts, civil servants in public institutions and organizations, other public servants who are not considered to be labourers by virtue of the services they perform, members of the armed forces and students who are not yet in higher education institutions, shall not become members of political parties.

    The membership of the teaching staff at higher education institutions in political parties is regulated by law. This law cannot allow those members to assume responsibilities outside the central organs of the political parties. It also sets forth the regulations which the teaching staff at higher education institutions shall observe as members of political parties.

    The principles concerning the membership of students at higher education institutions to political parties are regulated by law.

    The state shall provide the political parties with adequate financial means in an equitable manner. The financial assistance to be extended to political parties, as well as procedures related to collection of membership dues and donations are regulated by law.

    Article 69-The decision to dissolve a political party permanently owing to activities violating the provisions of the fourth paragraph of Article 68 may be rendered only when the Constitutional Court determines that the party in question has become a centre for the execution of such activities.

    The activities, internal regulations and operation of political parties shall be in line with democratic principles. The application of these principles is regulated by law.

    Political parties shall not engage in commercial activities.

    The income and expenditure of political parties shall be consistent with their objectives. The application of this rule is regulated by law. The auditing of the income, expenditure and acquisitions of political parties by the Constitutional Court as well as the establishment of the conformity to law of their revenue and expenses, methods of auditing and sanctions to be applied in the event of unconformity shall also be regulated by law. The Constitutional Court shall be assisted in performing its task of auditing by the Court of Accounts. The judgments rendered by the Constitutional Court as a result of the auditing shall be final.

    The dissolution of political parties shall be decided finally by the Constitutional Court after the filing of a suit by the office of the Chief Public Prosecutor of the Republic.

    The permanent dissolution of a political party shall be decided when it is established that the statute and program of the political party violate the provisions of the fourth paragraph of Article 68.

    The decision to dissolve a political party permanently owing to activities violating the provisions of the fourth paragraph of Article 68 may be rendered only when the Constitutional Court determines that the party in question has become a centre for the execution of such activities. A political party shall be deemed to become the centre of such actions only when such actions are carried out intensively by the members of that party or the situation is shared implicitly or explicitly by the grand congress, general chairmanship or the central decision-making or administrative organs of that party or by the group’s general meeting or group executive board at the Turkish Grand National Assembly or when these activities are carried out in determination by the above-mentioned party organs directly.

    Instead of dissolving them permanently in accordance with the above-mentioned paragraphs, the Constitutional Court may rule the concerned party to be deprived of State aid wholly or in part with respect to intensity of the actions brought before the court.

    A party which has been dissolved permanently cannot be founded under another name.

    The members, including the founders of a political party whose acts or statements have caused the party to be dissolved permanently cannot be founders, members, directors or supervisors in any other party for a period of five years from the date of publication in the official gazette of the Constitutional Court’s final decision and its justification for permanently dissolving the party.

    Political parties which accept financial assistance from foreign states, international institutions and persons and corporate bodies shall be dissolved permanently.

    The foundation and activities of political parties, their supervision and dissolution, or their deprival of State aid wholly or in part as well as the election expenditures and procedures of the political parties and candidates, are regulated by law in accordance with the above-mentioned principles.

  2. 2.

    Article 11—Freedom of Assembly and Association.

    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.

    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.

  3. 3.

    A good example concerning the TCC’s ongoing hesitation about observing the European standards on political parties is its recent ruling about the retrial of party dissolution cases. The Criminal Procedure Act of 2004 (Art. 311) provides a right to retrial for criminal cases which are later found to be in violation of the Convention by the ECtHR. Nevertheless, the TCC, disregarded to apply this provision for dissolved parties and refused the application of the United Communist Party of Turkey for retrial in 2008 due to the lacking of a new material fact (E.2003/6K.2008/4). Note that the TCC concluded both the case of HAKPAR and the application of the TBKP for retrial within the same month. This indicates that the Court has not fully adhered to the European standards. The Turkish parliament was prodded to enact a provision parallel to the Criminal Procedure Act in Law of the Organisation and Trial Procedures of the Constitutional Court of 2011 to eliminate the restrictive ruling of the Court (Öden and Esen 2014, 426–427).

  4. 4.

    Note that, the ECtHR also rendered a contraversial judgement concluding that the ban on solidarity strike did not violate Article 11 of the ECHR. Even though the Court noted that the UK is at the most restrictive end of a spectrum of national regulatory approaches and out of line with a discernible international trend towards a more liberal position, it also recognized a wide margin of appreciation to the contracting states in this matter (National Union of Rail, Maritime and Transport Workers v. The United Kingdom 2014).

  5. 5.

    Article 49—Everyone has the right and duty to work.

    The State shall take the necessary measures to raise the standard of living of workers, and to protect workers and the unemployed in order to improve the general conditions of labour, to promote labour, to create suitable economic conditions for prevention of unemployment and to secure labour peace.

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Authors and Affiliations

  1. Faculty of Law, Ankara University, Ankara, Turkey

    Selin Esen

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  1. Selin Esen
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Correspondence to Selin Esen .

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Editors and Affiliations

  1. Faculty of Law, University of Regensburg, Regensburg, Germany

    Rainer Arnold

  2. University of the Andes, Santiago, Las Condes, Chile

    José Ignacio Martínez-Estay

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Esen, S. (2017). Role of the European Court of Human Rights in the Turkish Constitutional Court’s Rulings Regarding the Freedom of Association. In: Arnold, R., Martínez-Estay, J. (eds) Rule of Law, Human Rights and Judicial Control of Power. Ius Gentium: Comparative Perspectives on Law and Justice, vol 61. Springer, Cham. https://doi.org/10.1007/978-3-319-55186-9_22

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