What is the case about?

The chief prosecutor of Turkey's Court of Cassation is asking the court to ban the party, on the grounds that it has "become a focus for activities against the indivisible integrity of the state with its country and nation" and to exclude 219 members of parliament, party officials, mayors, and other party members from participating in politics for five years.  Among these are Ahmet Türk, a member of parliament and the party co-chair, and members of parliament Aysel Tuğluk, Sebahat Tuncel, Osman Özçelik, İbrahim Binici, Selahattin Demirtaş, Sevahir Bayındır, and Fatma Kurtulan. The 120-page indictment against the party was issued on November 16, 2007, and the case has been pending before the Constitutional Court since then.

The indictment argues that the party has violated articles of the constitution and Law on Political Parties. The indictment refers specifically to articles 68 and 69 of the constitution as the basis for the charges.  Article 68/4 states:

The statutes and programmes, as well as the activities of political parties shall not be in conflict with the independence of the State, its indivisible integrity with its territory and nation, human rights, the principles of equality and rule of law, sovereignty of the nation, the principles of the democratic and secular republic; they shall not aim to protect or establish class or group dictatorship or dictatorship of any kind, nor shall they incite citizens to crime.

Article 69/6 provides that a party must be permanently dissolved if the above provision is violated.

Twenty one party members serve in parliament. They ran as independent candidates in the July 2007 parliamentary elections and then formed a Democratic Society Party group once elected. They adopted this tactic to overcome the legal requirement that only parties with 10 percent or more of the national vote can enter parliament. While Kurdish parties have received the majority of votes in national elections in the southeastern part of the country, they have never been able to attain 10 percent of the vote nationally.

What are the main allegations against the party?

The indictment alleges that the party has links with the armed outlawed Kurdistan Workers' Party (Partiya Karkeren Kurdistan, PKK) and quotes by way of evidence statements allegedly made by the imprisoned PKK leader Abdullah Öcalan to his lawyers that were published on websites and in the press. The indictment contends that these statements, which predate the establishment of the party and do not pertain to the activities of the party or its officials, "reveal... clearly that work to establish [the party] had been completed entirely under Öcalan's directives."

 The indictment relies heavily on evidence that numerous individual party members are currently being prosecuted for crimes related to their political expression. Nearly 50 pages of the indictment are devoted to discussing 123 examples of public speeches by the party's members of parliament and party officials, as well as slogans on banners and pictures of Öcalan held up at demonstrations and assemblies organized by local party offices. At the time the indictment against the party was issued in 2007, these public statements and public demonstrations were themselves the subject of on-going prosecutions in local courts, and in many cases lower courts had not yet issued verdicts or the cases were on appeal. In 33 cases, individual party members were still under investigation for their public statements or for slogans and banners held up by demonstrators, and no charges had yet been brought against them.

The typical charges brought against individual party members, mayors, and members of parliament  include "making propaganda for the PKK" (article 7/2, Anti-Terror Law; and article 220/8, Turkish Penal Code), "knowing and willingly aiding and abetting an illegal organization" (article 220/7, Turkish Penal Code), and "praising a crime or a criminal" (article 215, Turkish Penal Code).  The indictment cites eight cases in which individuals who are reportedly party members have been charged or are being investigated for involvement in violent activities, providing logistical help to the PKK, or receiving orders from members of the organization. One of these cases had resulted in a confirmed conviction 

The prosecutor argues that the evidence taken together justifies closing down the party, concluding:

Because it is observed that in reaching its aims the party on trial is intent on using and defending violence and the path of the separatist terrorist organization, it is clear that for the peace and security of the society, opening a trial for its permanent closure has become a social, political and legal obligation.   

How has the Democratic Society Party responded to the charges?

The party's lawyers have rejected the charges, including the prosecutor's assertion that it has advocated violence, arguing that none of the evidence amounts to grounds for banning the party. In the party's defense, put forward in June 2008, it argued that: "The 141 incidents cited in the indictment do not provide the grounds for the party to be closed, and 129 of them should be judged as part of freedom of expression and association."  

Has the Constitutional Court ever tried to ban a political party before?

Since its establishment in 1962, the Constitutional Court has banned 24 political parties.

The most common grounds have been accusations that the party advocated separatism or political activity emphasizing Kurdish ethnic identity, which is viewed as a form of separatism or threat to territorial integrity.  Other reasons have included alleged religious fundamentalism or a communist ideological orientation.

In July 2008 the ruling Justice and Development Party narrowly escaped being closed down. The party was accused of having engaged in anti-secular activities, supposedly evidence of a longer-term intention to set up an Islamic state.

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.  

What have the Constitutional Court's legal advisers said about the case?

While three legal advisers (rapporteurs) to the Constitutional Court have submitted a non-binding advisory opinion on the case to the members of the Constitutional Court, its full content has not been made public. However, press reports have indicated that it recommends closing down the party.

 Is the Constitutional Court's decision final?

Yes, in terms of Turkish law. The Constitutional Court is Turkey's highest court. There is no further right of appeal in Turkey against the decision the court's judges will reach in the coming days. It would be open to the Democratic Society Party to take a case to the European Court of Human Rights.

What are the likely human rights implications of a ban?

The banning of a democratically elected political party on the basis of speeches by members of the party that did not advocate violence, would have damaging consequences for human rights in Turkey, including for free expression and association and the right to political participation. It would be an extremely negative step, particularly at a time when the Turkish government has expressed a commitment to uphold the rights of Kurds in Turkey. The government tabled a November 13 parliamentary debate in which it committed itself to advancing the fundamental rights and freedoms of all groups in Turkey through a "democratic opening up."