Can Europe Make It?

Democratic representation of pro-Kurdish political parties in Turkey

In Turkey, political parties are evaluated by the Constitution Court according to their commitment to the 1982 Constitution. But you have to look to Europe for neutral universal principles, or something close.

Gönenç Ünaldı
21 October 2014

Political parties are vital organizations for the representation of different political groups. They defend basic human rights and freedoms in the democratic systems of our era. By organizing themselves into political parties, diverse ethnic, religious, social groups and minorities have the chance to make their voices heard about the political processes in a country. That’s why protecting the existence and rights of political parties is vital for preserving the healthy functioning of any democracy.

In many countries, laws and regulations govern the rules to be applied to political parties. While in developed democratic systems such laws protect the parties and political groups from the oppression of governments and state forces, in underdeveloped countries, these laws limit the freedoms of political groups and maintain a high barrier in the exercise of political rights.

Kuridsh men and women, some with cigarettes in mouth, standing, holding a poster, in protest

Kurdish (DTP and PKK) protesters. Demotix/Yusuf Sami Solmaz/All rights reserved

The abolition of pro-Kurdish parties in Turkey is a significant example of the exercise of laws to the disadvantage of an identifiable political group. Many political parties have been dissolved by the Turkish Constitution Court because of the solutions they propose for the Kurdish question. HEP (People’s Labor Party), ÖZDEP (Freedom and Democracy Party), DEP (Democracy Party), HADEP were interconnected Kurdish parties representing a definite political and cultural tradition. Besides these, parties with a socialist-communist identity such as TBKP (United Communist Party of Turkey) and SP (Socialist Party) were also abolished because of their liberal approaches to the Kurdish issue.

The arguments of the Turkish Constitutional Court 

In Turkey, political parties are evaluated by the Constitution Court according to their commitment to the 1982 Constitution. But the fundamentals of this constitution are not neutral universal principles. Unclear ideological concepts such as  “Atatürkist nationalism”, the emphasis on “Turkishness”, or the “indivisible integrity of the state and nation”, abound, making party dissolutions easier than you might expect.

Any proposals depending on federalism, confederalism or regional autonomy, in relation to the Kurdish issue, are treated by the Constitutional Court as separatism and legal grounds to abolish political parties. The European Court of Human Rights (ECHR) by contrast, considers these approaches as legitimate within the principles of democracy. Moreover, the  ECHR even regards separatist propaganda, drawing a firm bottom line against calls for violence or terrorism, as perfectly legal and democratic. According to the concept of democracy promoted by the ECHR, the most annoying and extraordinary thoughts have to be tolerated in a democratic society. This distinction between the approaches of the ECHR and the Turkish Constitution Court, has led to the situation where Turkey frequently has to pay compensation to the representatives of Turkey’s abolished political parties.

The 1982 Constitution has been functioning against various major rights and freedoms. Besides these, Turkish judges read the constitution with a narrow interpretation, according to which the dissolution of Kurdish parties may be legitimate despite being incompatible with universal democratic ideals, for which the European Convention on Human Rights, its case-law and the conclusions of the Venice Commission can be considered as guiding principles. According to these, an idea should be seen as legal unless it aims at destroying democracy or encouraging violence. Praising violence is regarded as an illegitimate approach and a crime. Political parties, too, should function within these boundaries.[1]

When we view the programs and actions of Kurdish parties in the past, we can see many signs of separatism. Interestingly, the Turkish Constitution Court dissolved these parties on this charge alone, but not because of their links with the terrorist organization PKK. The main reason for the dissolution of HEP, ÖZDEP, DEP, TBKP and SP was their federalist ideas for the future of the country.

The situation was different in the cases of HADEP and DTP. HADEP was abolished for its relations with the PKK and same judgment pertained to the DTP. Analyze the final decisions of the Constitutional Court regarding HADEP and DTP, and what you see is evidence of a connection between these parties and the PKK. By contrast, the ECHR found Turkey guilty for the abolition of HADEP, on the grounds that the precise connection between HADEP and the PKK was not clear and therefore the decision of the Turkish Constitutional Court had violated the 11th article of the European Convention on Human Rights.[2] The ECHR also accepted the application of DTP but have not so far announced their decision relating to this case.     

The ECHR maintains that parties which don’t encourage violence and terror and don’t aim to destroy democracy should play a part in a democratic society. According to the ECHR, trying to change the constitution by democratic means, proposals for federalism or confederalism, these should all be considered as legitimate and acceptable. This stance is consistent throughout the conclusions of the ECHR in the cases of HEP, DEP, ÖZDEP, TBKP and SP. 

The Venice Commission also draws  on the same principles. According to the Commission, non-violent acts must be tolerated. Also the dissolution of political parties should be an exception in democratic systems. In addition, the punishment of a party should be based on legal grounds and should be proportional to the gravity of the crime committed. A party should not be punished because of the declarations of its members. First, it must be investigated whether these opinions reflect the general policy of the party or not.[3]

The Spanish example 

On the other hand, settlements in Spain regarding political parties related with violent organizations have give rise to a different approach on this issue. The Spanish Organic Law on Political Parties, constituted in 1978, bans parties that have relations with terrorist organizations according to its 9th article. Drawing on the 9th article, in 2001, Herri Batasuna, the party claiming to be the political wing of ETA, was abolished temporarily by the National Court. The main legal grounds for the dissolution was Batasuna’s refusal to condemn the acts of ETA.

The dissolution of Batasuna wasn’t criticized by the European Union. Moreover, the European Parliament declared that they respected the decision of the Spanish Court. In no time, Herri Batasuna was on the EU’s list of terrorist organizations and named in this list as “a part of ETA”[4]. In 2003, the party was permanently abolished by the National Court. Herri Batasuna took the case to the ECHR but the ECHR supported the decision of the Spanish National Court stating that Herri Batasuna had solid connections with ETA and that the abolition of the party was necessary to protect democratic principles in Spain.[5]

In March 2008, further party dissolutions took place in Spain. The Basque parties, ANV and PCTV were prohibited for 3 years by the National Court and were banned from joining the 9 March 2008 elections. After a while, the Supreme Court reduced this ban. The 3-year ban was lifted and PCTV was allowed to join the elections. However, the Supreme Court decided to stop the economic support of the government to these parties.[6] 

In September 2008, ANV was permanently abolished by the Spanish Supreme Court and the ECHR backed this decision later in 2010.  PCTV was also outlawed by the Spanish Supreme Court in September 2008. [7]

Party dissolution laws in Europe

In Europe, many countries have laws about the dissolution or punishment of political parties. For example the German constitution prohibits parties which aim to destroy the federal constitutional order. Especially Paragraph 33 of the German Party Law includes provisions that impede the revival of tneo-Nazi and communist parties abolished in 1952 and 1956. The Slovakian Constitution contains articles which limit the freedom of association to protect national security, public order and to prevent crime, and which clearly state the legal grounds for dissolving a party. In Portugal, it is illegal to establish fascist or racist parties. Plus, the Portuguese Party Law prohibits the use of religious or national symbols in party emblems and logos, according to the 5th article of the Party Law. The 19th article of the Law prohibits pledges of commitment to party leaders.[8]

Furthermore, Poland’s Constitution prohibits parties that are founded on Nazi, fascist or communist principles and parties which encourage ethnic or racial hatred. In Austria, it is illegal to rebuild the National Socialist Party which was outlawed in the past. French legal order prohibits political parties which encourage discrimination or violence against an individual or a group of people, due to their different religious, ethnic, or national background. Also it is illegal to spread political ideas which cause hatred and violence in the name of party activities. Likewise in Bulgaria, political parties are prohibited from actions that breed ethnic, racial or religious discrimination. Also Bulgaria bans attempts to establish political parties built on fascist principles. According to Danish Constitution too, it is illegal for political parties to provoke violence and hatred.[9] 

In eastern European countries, we see an additional aspect in relation to party laws. As they were in the past members of the socialist bloc with its concept of the “single party state”; once they had undergone the democratization process, strict rules were applied to prevent the revival of party oligarchy. For example according to the 12th article of Moldavian Party Law, the creation of party cells or branches in workplaces is prohibited.[10] The same sort of rule applies to various of the governmental bodies. Similar laws prevail in other eastern European states.

One other aspect concerns the financial dealings of political parties. For example in Austria, party finances are strictly controlled to stop any chance of corruption. Separate articles are put in the party law on this issue. The same sensitivity is true for Finland and Britain. We can say that, generally, in well established democracies, party laws focus on financial dealings and the threat of corruption.[11]

European countries tend to have strict rules on political party regulations. But, despite these, it should be noted that, except in Spain, in Europe the dissolution of political parties has not been applied for a long time. Finland has not banned a political party since the 1930s, Lichtenstein since 1945, Denmark since 1953 and Germany since 1956.[12] 

In conclusion, it is obvious that European political and judicial systems avoid the tendency to abolish or punish political parties. Dissolution of a political party is a serious legal and political act and should be examined by considering the universal principles of democracy and the exercise of law as it is applied and generally recognized in the most developed democratic systems. 

 

 

[1] The Venice Commission, “Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures”, on 10–11 December 1999.

[2] Stratejik Düşünce Enstitüsü, “Parti Kapatma, HADEP ve AİHM“, on 03 January 2011.

[3] The Venice Commission, “Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures”, on 10–11 December 1999

[4] Official Journal of the European Union, “EU Council Common Position”, 29 May 2006.

[5] Presseurop, “European Court Clips ETA's Political Wing”, 02 July 2009.

[6] Radikal Newspaper, “Ayrılıkçı Bask Partilere Toptan Seçim Yasağı”, 10 February 2008

[7] Hürriyet Newspaper, “İspanya’da Bir Parti Daha Kapatıldı”, 19 September 2008

[8] Patrick Macklem, “Militant democracy, legal pluralism, and the paradox of self-determination”, I-CON, Volume 4, Number 3, 2006, pg. 491

[9] Ibid., pg. 493

[10] Lauri Karvonen, “Legislation on Political Parties: A Global Comparison”, Party Politics, Vol. 13, No. 4, pg. 446

[11] Ibid., pg.446

[12] The Venice Commission, “Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures”, on 10–11 December 1999

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