Saturday, December 12, 2009

Human Right Watch about Closing down the DTP

I am waiting what Mr Riza Türmen , a former judge of the ECHR will say about the closing down the Kurdish DTP party, but here a statement made by Human Right Watch:

What does human rights law have to say about closing down political parties?

Freedom of expression and freedom of association are protected under the European Convention on Human Rights, to which Turkey is party. Those rights can be limited on the grounds of public order, but any restriction must be prescribed by law, only be done for a legitimate aim, and be necessary in a democratic society (i.e. be the least restrictive measure possible to meet the legitimate aim). Speech that incites violence can be legitimately restricted, but the restrictions must also comply with international human rights law. However, the speeches and statements presented as evidence in the case do not openly promote or praise violence.

While Turkey's present laws provide for the prosecution of individuals for the kind of statements listed in the indictment, Turkey's prosecution of non-violent speech has been repeatedly criticized by the European Commission, the European Parliament, the Council of Europe, and domestic and international human rights groups.

While many of the party's officials are currently facing criminal prosecution for their speech, the majority of these prosecutions appear to be wholly unjustified. What is more, no evidence has been presented in the indictment that would warrant a decision in the case before the court to dissolve their political party.

The European Court of Human Rights, which assesses state compliance with the convention, has heard nine cases against Turkey concerning political party bans by Turkey's Constitutional Court. In all but one case, the European Court has ruled against the decision to ban, finding Turkey in violation of articles 10 and 11 of the European Convention (freedom of expression and freedom of association.)

The Venice Commission of the Council of Europe, an expert body that advises on law reform consistent with human rights standards, has developed guidelines on closing parties. The guidelines, approved in 1999, state:

Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution.

In response to the closure case against the ruling Justice and Development Party, the Parliamentary Assembly of the Council of Europe passed a resolution on June 26, 2008 (PACE Resolution 1622 [2008] ) on "The functioning of democratic institutions in Turkey: recent developments" stating that:

14. The current proceedings against the AK Party, regardless of their outcome, spark a renewed debate about the legal basis for the closure of political parties in the country and show that, despite ... reforms, the issue of dissolution of political parties in Turkey is not closed. The Assembly notes that it becomes clear that further constitutional and legislative reforms in this respect are necessary.

Similarly, the Venice Commission of the Council of Europe adopted a legal opinion on Turkey's frequent actions to close down political parties, ("Opinion on the constitutional and legal provisions relevant tothe prohibition of political parties in Turkey": CDL-AD [2009] 006) in March 2009, concluding that:

106. ... the provisions in Article 68 and 69 of the Constitution and the relevant provisions of the Law on political parties together form a system which as a whole is incompatible with Article 11 of the ECHR as interpreted by the ECtHR and the criteria adopted in 1999 by the Venice Commission and since endorsed by the Parliamentary Assembly of the Council of Europe.

107. The basic problem with the present Turkish rules on party closure is that the general threshold is too low, both for initiating procedures for and for prohibiting or dissolving parties. This is in itself in abstracto deviating from common European democratic standards, and it leads too easily to action that will be in breach of the ECHR, as demonstrated in the many Turkish cases before the European Court of Human Rights.

108. Because the substantial and procedural threshold for applying the Turkish rules on party prohibition or dissolution is so low, what should be an exceptional measure functions in fact as a regular one. This reduces the arena for democratic politics and widens the scope for constitutional adjudication on political issues.

The article can be read herreeee

Day Opening - December 12

Picture made by Iranian protestors of their president
Mahmoud Ahmadinejad.