European Court of Human Rights on Shari'ah Law

JUDGMENT IN THE CASE OF REFAH PARTISI (THE WELFARE PARTY) ERBAKAN, KAZAN AND TEKDAL v. TURKEY

In a judgment^[4] delivered at Strasbourg on 31 July 2001 in the case of Refah Partisi, Erbakan, Kazan and Tekdal v. Turkey (nos. 41340/98 & 41342-4/98), the European Court of Human Rights held, by four votes to three, that there had been no violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights and unanimously that no separate issues arose under Articles 9, 10, 14, 17 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1.

1. Principal facts

The first applicant, Refah Partisi (the Welfare Party, hereafter the "RP") was a political party that had been founded on 19 July 1983. It was represented by its Chairman, Necmettin Erbakan. He is the second applicant and was a Member of Parliament at the material time. The third and fourth applicants, Şevket Kazan and Ahmet Tekdal, are politicians and lawyers and were at the material time Members of Parliament and Vice-Chairmen of the RP.

On 21 May 1997 the Principal State Counsel at the Court of Cassation brought proceedings in the Turkish Constitutional Court seeking the dissolution of the RP, which he accused of having become "a centre of activities against the principle of secularism". In support of his application, he relied on various writings and declarations made by leaders and members of the RP which he said indicated that some of the party’s objectives, such as the institution of Sharia law and a theocratic regime, were incompatible with the requirements of a democratic society.

Before the Constitutional Court the applicant’s representatives argued that the prosecution had relied on mere extracts from the speeches concerned, thereby altering their meaning and without looking at the documents as a whole. They also maintained that the RP, which at the material time had been in power for a year as part of a coalition, had consistently observed the principle of secularism and respected all religious beliefs and consequently was not to be confused with political parties that sought the establishment of a totalitarian regime. They added that some of the RP’s leaders had only become aware of certain of the remarks impugned in the case after the Principal State Counsel’s application for the dissolution of the party was served on them and that they had nonetheless expelled those responsible from the party to avoid the RP being seen as a "centre" of illegal activities for the purposes of the law on the regulation of political parties.

On 16 January 1998 the Constitutional Court made an order dissolving the RP on the ground that it had become a "centre of activities against the principle of secularism". It also declared that the RP’s assets were to be transferred by operation of law to the Treasury. The Constitutional Court further held that the public declarations of the RP’s leaders, and in particular Necmettin Erbakan, Şevket Kazan and Ahmet Tekdal, had a direct bearing on the constitutionality of the RP’s activities. Consequently, it imposed a further sanction in the form of a ban on their sitting in Parliament or holding certain other forms of political office for a period of five years.

2. Procedure and composition of the Court

The applications were lodged on 22 May 1998 and declared partly admissible on 3 October 2000. A hearing on the merits was held on 16 January 2001. Judgment was given by a Chamber of seven judges, composed as follows:

Jean-Paul Costa (French), President,
Willi Fuhrmann (Austrian),
Loukis Loucaides (Cypriot),
Riza Türmen (Turkish),
Nicolas Bratza (British),
Hanne Sophie Greve (Norwegian),
Kristaq Traja (Albanian), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment^[5]

Complaints

The applicants complained of a violation of Articles 9 (freedom of thought), 10 (freedom of expression), 11 (freedom of association), 14 (prohibition of discrimination), 17 (prohibition of abuse of rights) and 18 (limitations on use of restrictions on rights) of the European Convention on Human Rights, and of Article 1 (protection of property) and 3 (right to free elections) of Protocol No. 1.

Decision of the Court

The Court considered that, when campaigning for changes in legislation or to the legal or constitutional structures of the State, political parties continued to enjoy the protection of the provisions of the Convention and of Article 11 in particular provided they complied with two conditions: (1) the means used to those ends had to be lawful and democratic from all standpoints and (2) the proposed changes had to be compatible with fundamental democratic principles. It necessarily followed that political parties whose leaders incited others to use violence and/or supported political aims that were inconsistent with one or more rules of democracy or sought the destruction of democracy and the suppression of the rights and freedoms it recognised could not rely on the Convention to protect them from sanctions imposed as a result.

The Court held that the sanctions imposed on the applicants could reasonably be considered to meet a pressing social need for the protection of democratic society, since, on the pretext of giving a different meaning to the principle of secularism, the leaders of the Refah Partisi had declared their intention to establish a plurality of legal systems based on differences in religious belief, to institute Islamic law (the Sharia), a system of law that was in marked contrast to the values embodied in the Convention. They had also left in doubt their position regarding recourse to force in order to come to power and, more particularly, to retain power.

The Court considered that even if States’ margin of appreciation was narrow in the area of the dissolution of political parties, since pluralism of ideas and parties was an inherent element of democracy, the State concerned could reasonably prevent the implementation of such a political programme, which was incompatible with Convention norms, before it was given effect through specific acts that might jeopardise civil peace and the country’s democratic regime.

Judges Fuhrmann, Loucaides and Bratza expressed a dissenting opinion, which is annexed to the judgment.

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The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.^[1]

The Court’s Annual Reports always provide an ideal opportunity to look back over the past year and to take stock of the events that marked it. So what is to be gleaned from 2003?

The first thing that stands out every year is the way in which, through the Court’s caselaw, solutions to a wide range of situations and issues are to be found in the handful of substantive Convention provisions.
. . .
Out of the 703 judgments delivered in 2003, I have selected two which, through both their differences and their complementarity, reflect the dual role played by the Court. These are the judgments in the cases of Refah Partisi (the Welfare Party) and Others v. Turkey^[6] and Jakupovic v. Austria,^[7] which were delivered on 13 and 6 February 2003 respectively.

The first is a unanimous Grand Chamber decision and is one of a series of judgments over the past few years in which the Court has sought to define the bases of the democratic system on which the Convention is founded.
. . .

the Court, aided by the pan-European consensus provided by the Convention, has a role to play in identifying the constituent elements of democracy and in reminding everyone of the minimum essential requirements of a political system if human rights within the meaning of the Convention are to be protected. It has in the past applied itself to establishing the basic principles of the rule of law, the role of political parties, and the limits on freedom of political expression and parliamentary immunity. In Refah Partisi, it carried out a thorough examination of the relationship between the Convention, democracy, political parties and religion, and found that a sharia-based regime was incompatible with the Convention, in particular, as regards the rules of criminal law and procedure, the place given to women in the legal order and its interference in all spheres of private and public life in accordance with religious precepts.^[2]

As I do every year, I will tonight outline some of the main messages which emerge from our case-law over the past year. This year I shall talk about four cases.

The first concerned the dissolution, by the Turkish Constitutional Court, of a political party, the Welfare Party, on the grounds that it wanted to introduce sharia law and a theocratic regime. A Grand Chamber of the Court found unanimously that there had been no violation of Article 11 of the Convention, which protects freedom of association. This case gave the Court the opportunity to conduct an in-depth analysis of the relationship between the Convention and democracy, political parties, and religion.

In its judgment,^[8] the Court first noted that freedom of thought, of religion, of expression and of association as guaranteed by the Convention could not deprive the authorities of a State in which an association, through its activities, jeopardised that State’s institutions, of the right to protect those institutions. It necessarily followed that a political party whose leaders incited to violence or put forward a policy which failed to respect democracy or which was aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy, could not lay claim to the Convention’s protection against penalties imposed on those grounds. Such penalties could even, where there was a sufficiently established and imminent danger for democracy, take the form of preventive intervention.

Noting that the Welfare Party had pledged to set up a regime based on sharia law, the Court found that sharia was incompatible with the fundamental principles of democracy as set forth in the Convention. It considered that “sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it”. According to the Court, it was difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverged from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervened in all spheres of private and public life in accordance with religious precepts.

There is no doubt that this judgment is one of the major judgments of the Court in which it endeavours to define the shape and the boundaries of democracy and the rule of law.^[3]