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Case Brief Refah Partisi (The Welfare Party) Encicl Kit Prosperității Politicomm
Case Brief Refah Partisi (The Welfare Party) Encicl Kit Prosperității Politicomm
Procedural
Posture
Issues
Rights
Holding
and
Case of the Refah Partisi (The Welfare Party) and others v. Turkey. ECHR.
Grand chamber Judgment, Strasbourg 13 February 2003
App nos.: 41340/98, 41342/98, 41343/98 and 41344/98
Applicants: Refah Partisi (The Welfare Party) Party members: Mr Necmettin
Erbakan, Mr Sevket Kazan and Mr Ahmet Tekdal
State parties: Turkey
Refah partisi was a political party in Turkey formed in 1989. The results of the
1995 general election made Refah the largest political party in Turkey, and in
1996 Refah came to power by forming a coalition government. In 1997 the
State authorities started proceedings in the Turkish Constitutional court with an
application to have Refah dissolved on the grounds that it was a centre of
activities contrary to the principle of secularism which is enshrined in the
Constitution of Turkey. By its judgment of 9 January 1998, the Constitutional
court dissolved Refah on the ground that it became a centre of anticonstitutional activities and banned its leaders (including the applicants) for
five years from holding similar office in any other political party.
The applicants alleged that the dissolution of Refah by the Constitutional court
and the suspension of certain political rights of applicants who were leaders of
Refah had breached Articles 9, 10, 11, 14, 17 and 18 of the Convention and
Articles 1 and 3 of Protocol No. 1.
On 17 January 1998 the Turkish Constitutional Court dissolved Refah. The
case originated in four applications against the Republic of Turkey by the
applicants. The applications were transmitted to the Court on 1 November
1998. The applications were joined (Rule 43 1) and on 3 October 2000 they
were declared partly admissible by a Chamber of that Section. On 31 July 2001
the Chamber gave judgment, holding by four votes to three that there had been
no violation of Article 11. On 30 October 2001 the applicants requested, under
Article 43 of the Convention and Rule 73, that the case be referred to the
Grand Chamber. On 12 December 2001 a panel of the Grand Chamber decided
to refer the case to the Grand Chamber. A hearing took place in public in the
Human Rights Building, Strasbourg, on 19 June 2002. The Court delivered is
judgment on 13 February 2003.
The questions facing the Court in the case of Refah v. Turkey, are :
- Has there been a violation of article 11?
- Is the action taken by the government in accordance to the rules set in article
11, 2
Directly: The right to assembly and freedom of association
Indirectly: The right to freedom of expression, freedom of religion
The Court held that Refahs dissolution and measures imposed on its leaders
political rights amounted to an interference with the applicants exercise of
Group E, October 2006
Side 1 av 4
Reasoning
Rules of
Law
Decision
Validity
A political party and its members can be subject to the restrictions of freedom
of assembly and association under Article 11 paragraph 2 if partys activities
are contrary to the fundamental principles of democracy and the Convention.
While political parties are the main protagonists of democratic policies, their
activities are not exempt from certain restrictions.
Limitations the rights of individuals and groups may be limited to ensure the
existence of democracy in the state. One of the main goals of the convention is
to protect democratic ideals, groups or political parties may not claim the
protection of the convention when seek the destruction of these ideals.
The Court held that since there was no violation of Article 11, it was not
necessary to examine the complaints under Art. 9, 10, 14, 17 and 18 of the
Convention and Articles 1 and 3 of Protocol No. 1.
Legal binding