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- aggregation classification "B2".
- aggregation creator person.
- aggregation date "2004".
- aggregation hasFormat 218505.bibtex.
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- aggregation isPartOf urn:isbn:90-5095-367-0.
- aggregation language "dut".
- aggregation publisher "Intersentia".
- aggregation rights "I have retained and own the full copyright for this publication".
- aggregation subject "Law and Political Science".
- aggregation title "Het Europees Hof voor de Rechten van de Mens en het partijverbod: dansen op een slap koord".
- aggregation abstract "In a great number of European States, the constitution provides that associations – and consequently also political parties – that do not stick to the democratic rules or that identity themselves with the dictatorial past of a country can be prohibited. Such prohibition however is in almost every country regarded as an ultimate measure. It can only be used provided there is an imminent danger that the democratic structures of the state in question will be destroyed. This is not the case in Turkey. The prohibition of political parties there seems to be a legitimate means of pursuing politics. Every political party that creates the impression that it might question the fundamental principles that underlie the Turkish state – to wit rigid secularism and the absolute unity of the Turkish nation – is sooner or later (but generally pretty soon) qualified by the Turkish constitutional court as a “centre of unconstitutional activities” and prohibited. During the past forty years, thirty-five parties were thus denied a right to exist. Those prohibitions generally did not generate that much effect since the ban and dissolution very often were followed by the creation of new political parties with similar programmes. During the last six years however, the Turkish political parties seem to have found their way to the European Court of Human Rights, which since 1998 has judged eight times on these kinds of prohibitions. Six cases dealt with minor political parties that advocated the recognition of the Kurdish language and culture, the introduction of a federal state, openly recognised the existence of a separate Kurdish people or claimed the right to self-determination for these people. In all six cases, the Court judged that the prohibition could not be regarded as being necessary in a democratic society and therefore violated the European Convention on Human Rights. Two other cases dealt with the prohibition by the Turkish constitutional court of one and the same party, to wit the “REFAH-partisi” or “Welfare-party”. This party clearly stipulated in its programme and statutes that it respected the secular and democratic character of the Turkish State. Some statements of prominent party-members indicated however that REFAH was not always that scrupulous regarding secularism and democratic principles. Those statements varied from making pleas for the wearing of headscarves for girls and women in public schools and all government buildings over the demand to introduce a plurality of legal systems depending on the fate of each citizen, the appeal to confirm the supremacy of the Koran via a holy war to the announcement of the installation of a theocratic regime. In addition, some members threatened with bloodshed if the theological schools would be curbed and announced the elimination of everybody opposing the installation of a theocracy. Until just before its prohibition, REFAH neither condemned, nor distanced itself from these statements. The mayhem that characterised political life in Turkey during the last decennium lead to an increasing support for REFAH by the population, until it won the elections of 1995, formed a coalition with the centre-right Party of the Right Path in 1996 and delivered the prime minister. Once in government REFAH hardly attempted to put into practice the statements made by its leaders. It arranged an adjustment of working hours for civil servants during Ramadan, Prime Minister Necmettin Erbakan invited religious leaders to a reception in his office and the minister of justice visited a mayor that was convicted for publicly defending fundamentalist terror groups. Despite this rather modest behaviour, on 16th January 1998 the Turkish constitutional court prohibited REFAH on the basis of the above-mentioned statements. On the 22nd May 1998, REFAH and its leaders started a procedure before the European Court of Human Rights. On the 31st July 2001 the chamber of 7 judges decided that the prohibition was compatible with the European Convention. The Grand Chamber confirmed this decision on the 13th February 2003. In a first chapter, I will discuss the general principles developed by the European Court in the different Kurdish party cases regarding the dissolution of political parties. In those cases, the Court repeated over and over again that the Convention offers political parties – because of their crucial role for the proper working of a democracy – a specific protection and that dissolution will only be acceptable in the most serious cases. Only the protection of the democracy can justify such measures. In a second chapter, I will discuss the application of these principles in the two REFAH-cases, since these are the only two cases in which the Court found the prohibition of a political party to be compatible with the Convention. In a third chapter, I will discuss three questions that follow from the statement by the Court that only the need to protect democracy can justify the prohibition of a political party. The first question is how the Court defines “democracy”. This question is essential a question regarding the ideological fundaments of the Convention. The second question relates to the character of a party prohibition. Is it sufficient that a political party advances undemocratic propositions for it to be dissolved? Or is it required that the party constitutes a real danger for democracy? Formulated differently, this question relates to as of when a political party may be prohibited. Lastly, the third question is whether the Convention contains a positive obligation to prohibit undemocratic political parties. I conclude with the statement that the Court, because of its judgements on the prohibition on political parties and its elaboration of the notion “democracy” positions itself more than ever as a “supraconstitutional” court. While doing so, it makes – like any constitutional court – political decisions.".
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