ITEMID: 001-72117
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DOROCHENKO v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Vladimir Dorochenko and Ms Nina Dorochenko, are Russian nationals, who were both born in 1949 and live in Smolensk, the Russian Federation. They are represented before the Court by Mr A. Arjupin, legal adviser of the Legal Information Centre for Human Rights in Tallinn, and Mr W. Bowring, barrister and professor of law at the London Metropolitan University. The respondent Government are represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Mr Vladimir Dorochenko, the first applicant, was born in Ukraine. In 1951 he moved to Estonia together with his parents. In 1970 he married Ms Nina Dorochenko, the second applicant, who had been born in Estonia in 1949. Both applicants are of Russian origin.
The applicants have three children who all live in Estonia. Their daughter Yulia (born in 1971) is a stateless person. She has a permanent residence permit in Estonia. The applicants’ first son Sergey (born in 1975) is a Russian national. He too holds a permanent residence permit. The applicants’ second son Vitaly (born in 1983) is a Russian national and he holds a temporary residence permit in Estonia for five years (until 11 July 2006). At the time the application was lodged with the Court, he was living together with the applicants.
The first applicant’s mother who had had a permanent residence permit to live in Estonia died on 4 December 2004. His father (born in 1923), a Russian national, resides in Estonia on the basis of a permanent residence permit. The second applicant’s mother and the applicants’ grandchildren are also living in Estonia.
From 1969 to 1995 the first applicant served in the Soviet and Russian armed forces.
On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory.
In 1995 until his assignment to reserve on 12 April 1995 (see below) the first applicant served as a senior midshipman in the Paldiski military unit. His duties included the dismantling of a nuclear reactor in Paldiski.
On 10 April 1995 the commander of the Paldiski military unit issued a decree by which the first applicant was assigned to the reserve as of 12 April 1995. He was discharged from the Paldiski military unit and sent to the Zadneprovsk military unit in Smolensk, Russia. According to the decree, it was decided to allocate financial means to the applicants and their two sons for their travel to Smolensk.
As the applicants did not have housing in Russia, the first applicant applied for a flat in Russia within the framework of an aid programme provided by the United States of America. On 10 April 1995 he signed a written commitment in this connection. The form of the commitment was in Russian. In the form, signed by the first applicant, it was stated that he wished to take part in the programme for providing housing for officers of the Russian armed forces. It was further stated that if he received housing in the context of the programme, he and his family would vacate the dwelling that was at their disposal in the Baltic country and that in the future he would be able to visit the Baltic countries only as a foreigner on general basis. Furthermore, it was stated that the applicant had no housing in Russia, that he had not paid anyone for the right to take part in the programme and that he was aware that the housing in the context of the programme would be provided free of charge. It was confirmed that the dwelling he possessed in the Baltic country had not been privatised or sold and that he had not received any payment for it.
On 20 April 1995 the first applicant submitted an application for taking part in the programme. In the application form, signed by the first applicant, it was stated that if he were to receive a dwelling in the context of the aid programme, he, together with his family, would vacate the dwelling that was at his family’s disposal in the Baltic country and not seek to stay in the Baltic countries as permanent residents. It further stated that in the future he would be able to visit the Baltic countries only as a foreigner. It was stated that he and his family did not possess a dwelling in the Baltic countries and that they would not seek to privatise or sell the dwelling at their disposal and that they had not received and would not receive any payment for vacating their current dwelling. It was also stated that he confirmed that at the moment of signing the application he did not have housing in Russia and that he had not paid anyone for the right to take part in the programme. It was stated that he was aware that if all the preconditions for taking part in the programme were fulfilled and he were to comply with all the conditions and requirements of the programme, he would receive money for buying a dwelling. Finally, it was stated that he was also aware that the participation in the programme was voluntary and that if it were to prove unsuccessful, his place in a municipal waiting list of applicants for dwelling would be retained.
On 21 April 1995 the first applicant concluded an agreement in Smolensk with the company Smolenskiy DSK to the effect that he would pay an equivalent of 25,000 US dollars and receive an apartment at Popov Street 120-349 in Smolensk. The agreement was to become valid if the first applicant were to get money in the context of the programme for granting military reserve officers certificates for obtaining housing.
On 4 July 1995 the applicants submitted an application for a residence permit in Estonia.
On 31 August 1995 the mayor of Smolensk allocated apartment no. 337 at 120 Popov Street to the first applicant and ordered that he be registered as its owner.
On 18 December 1995, the first applicant was entered in the list of staff of the military unit in Smolensk.
On 11 July 1996 the applicants were granted temporary residence permits in Estonia for five years.
As from 1997 the first applicant was working as a guard in Estonia. The second applicant was working as a housemaid, also in that country, as from 1999.
In 1999 the Foreigners’ Act (Välismaalaste seadus) was amended so as to exclude the possibility of issuing or extending residence permits to persons who had committed themselves to leaving Estonia or who had received an accommodation abroad within the framework of an international aid programme.
On 28 November 2000 the second applicant privatised (purchased on favourable conditions from the municipality) an apartment no. 56 at 1 Muuli Street in Paldiski. On 13 February 2001 the second applicant, acting as her son Sergey’s proxy, privatised an apartment no. 10 at 1 Kivi Street in Paldiski.
On 30 April 2001 the applicants applied for extensions of their residence permits. On 2 November 2001 the Minister of the Interior issued orders by which the applicants were refused extensions. The refusal was based on two grounds. Firstly, the first applicant had served as a professional member of the armed forces of a foreign country and had retired. This ground applied also to the second applicant as a family member of the first applicant. Secondly, the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme.
The applicants submitted a complaint to the Tallinn Administrative Court (Tallinna Halduskohus). They contested the retroactive application of the provisions of the Foreigners’ Act so as to refuse extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received an accommodation abroad within the framework of an international aid programme. The Foreigners’ Act did not contain the disputed provisions at the time when the applicants participated in the aid programme and received accommodation in Russia. They argued that their legitimate expectation rights and the principle of legal certainty had been violated. They also maintained that their commitment to leave the country had not been made to the Estonian authorities. They further complained that their right to family and private life had been violated.
On 8 May 2002 the Tallinn Administrative Court dismissed the complaint. It observed that the Foreigners’ Act provided that the residence permits of former professional members of armed forces of a foreign country and of their family members could be extended only in exceptional circumstances. Although the Minister of the Interior’s orders did not state why such an exception did not apply in the applicants’ case, the Administrative Court found the orders to be lawful, since the Foreigners’ Act in any case did not permit extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received accommodation abroad within the framework of an international aid programme. It dismissed the applicants’ claim that their legitimate expectation rights and the principle of legal certainty had been violated, holding that the principle of legitimate expectation could not be extended so far as to prevent the legislator from making any changes to the legislation in force at any point of time. The Administrative Court rejected the complaint concerning the violation of the right to family and private life, finding that the applicants could enjoy family life in the country of which they were nationals and in which they had undertaken to settle, when consenting to participate in the aid programme.
In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) the applicants stressed that the first applicant’s elderly parents, whom the applicants had to take care of, lived in Estonia. The second applicant had been born in Estonia and had been living there ever since. The first applicant had lived in Estonia for fifty years. They supported financially their children, who lived in Estonia, including one child who lived together with them. Also their grandchildren lived in Estonia. The first applicant had opted for the aid programme and adopted Russian nationality only because of the lack of certainty as to the possibility to remain living in Estonia.
On 6 January 2003 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. The Court of Appeal noted that in his written consent to take part in the aid programme, the first applicant had stated that the size of his family was four persons, including the two sons. Thus, the first applicant had known already at the time he had been consenting to take part in the aid programme that his parents would remain in Estonia.
On 20 May 2003 the Supreme Court (Riigikohus) upheld the judgments. It reiterated that on 26 July 1994 Estonia and the Russian Federation had concluded a treaty concerning the withdrawal of the Russian troops from Estonia. According to the treaty the Russian military servicemen and their family members had to leave Estonia. The United States aid programme had been set up to facilitate the resettling of the military servicemen. The fact that Estonia had not been a party to the programme, did not, in the Supreme Court’s view, exclude the legitimacy of the enactment and application of the provision of the Foreigners’ Act, under which the applicants had been denied the extensions of the residence permits. The Supreme Court agreed with the opinion of the Court of Appeal that in case the first applicant’s parents wished to stay in Estonia, the grown-up children of the applicants could take care of them.
On 5 September 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet) issued a precept to the applicants requiring them to leave Estonia. The applicants complied with the precept and cancelled their registration of residency in Paldiski. According to the population registration database the applicants left Estonia on 25 November 2003 and settled in Smolensk. In the applicants’ submission they had to leave Estonia in December 2003, after the police had entered their flat in November in order to execute the precepts by force.
Section 12(4) of the Foreigners’ Act (Välismaalaste seadus) listed the instances in which a residence permit could not be issued or extended. Section 12(4)(7) provided that a permit could not be issued or extended, if the foreigner applying for it had served as a professional member of the armed forces of a foreign state or had been assigned to the reserve forces thereof or had retired therefrom. Section 12(4)(14) provided that a residence permit could also not be issued or extended for the spouse and minor children of a person referred to in section 12(4)(7). Section 12(5), however, provided that, as an exception, a temporary residence permit could be issued or extended for the foreigner concerned if this was not excluded on some other grounds listed in the same provision.
Section 12(9)(4) of the Foreigners’ Act provided that a residence permit could not in any case be issued or extended, if the person concerned had, inter alia, committed himself or herself to leaving Estonia or had received accommodation abroad within the framework of an international aid programme. This provision was adopted on 21 September 1999 and entered into force on 1 October 1999. It was subject to an amendment in 2001, which does not appear to have relevance to the present case.
According to the Government of Estonia, in April and July 1993 the President of the United States of America and the President of the Russian Federation agreed to undertake a project for providing up to 5,000 units of housing for Russian military officers demobilized from the Baltic countries or elsewhere outside Russia.
The Government submitted to the Court a copy of “Russian Military Officer Resettlement Program. Housing Certificate Program” and “Russian Military Officer Resettlement Program. Housing Construction Program. Information Digest”. These information materials appear to have been handed out by the American side in the Aid Programme to the participating Russian officers.
According to the information materials, the Russian Military Officer Resettlement Programme had been set up in order to provide up to 5,000 units of housing for Russian military officers demobilised mainly from the Baltic countries. About a half of the units of housing had to be constructed, whereas the rest of the housing units had to be provided through a housing certificate programme.
In order to take part in the Programme, the officers had to present a discharge order, passport, official verification of the family size and composition, official verification of current residence in the Baltics and a signed application for participation in the programme containing declarations that upon obtaining housing under this programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residency in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign guests. The officers had to declare that they and their families did not own housing in Russia nor would they own, privatise or sell any dwellings in the Baltics and would not receive any payments in connection with vacating any dwelling. The officers declared their understanding that if they were found to be eligible to participate in the Programme and if all Programme’s terms and conditions were met, they would receive appropriate apartments (in the framework of the housing construction programme) or financial assistance for the purchase of housing units (in the framework of the housing certificate programme).
In order to obtain a registration of residence (propiska) in the Passport Desk for their new apartment, the officers had to present their Russian Passport and the Russian passports for all family members along with proof of cancellation of their registration of residency (vypiska) for all members of the family in the Baltics. Officers had to move in within 45 days after notification by the Russian Offices of Social Assistance or by the local administration, otherwise their apartments could be reassigned.
Participation in the Programme was voluntary; no enrolment fee was required.
After the independence of the Republic of Estonia was restored on 20 August 1991, the Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over its armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of the Russian troops from the Estonian territory and on the conditions of their temporary stay in Estonia. On the same day, Estonia and Russia concluded an agreement concerning the social guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia. The Treaty and the Agreement entered into force on 2 February 1996, having been subject to temporary application from the day of signing, that is, from 26 July 1994.
According to the Treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in the active service of the Russian armed forces. Family members of the military personnel in active service who did not have a dwelling in Russia were allowed to remain in Estonia for up to one year.
The Agreement provided that retired military personnel, i.e. persons discharged from the army service and receiving pension, and their family members could apply for residence permit in Estonia. The Estonian Government could deny a residence permit due to a threat to national security.
On 30 July 1994 an agreement on the procedure and terms for the dismantling of the nuclear reactors, and for ensuring nuclear and radiation safety on the Pakri peninsula of the Republic of Estonia was concluded between the Government of Estonia and the Government of the Russian Federation. This Agreement entered into force on the day of its signing and it remained effective until 30 September 1995. According to the Agreement, work for the dismantling of nuclear reactors and ensuring nuclear and radiation safety was to be performed by specialists of the Russian Federation. Estonia undertook to give temporary residence permits to the specialists and their family members for the period of validity of the agreement. In cases where the postponement of the departure was required, including the absence of the housing in Russia, the validity of the residence permits of the family members could be extended until 15 May 1996. After the expiry of the residence permits the specialists together with their family members had to leave Estonia.


ITEMID: 001-92343
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SARAK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Ali Sarak, is a Turkish national who was born in 1981 and lives in Şanlıurfa. He was represented before the Court by Mr N. Çevirci, a lawyer practising in Şanlıurfa.
In 2001 the applicant started his military service. After a few months, he was diagnosed with Hepatitis B and, as a result, he was discharged. On 11 December 2002 the applicant brought an action in the Military Administrative Court against the Ministry of Defence, requesting pecuniary and non-pecuniary compensation for having allegedly been infected with the Hepatitis B virus during his military service. Based on an expert report, which stated that the applicant could have been infected before starting his military service, on 1 December 2004 the Military Administrative Court dismissed the applicant’s case.


ITEMID: 001-23118
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: HOFFMAN KARLSKOV v. DENMARK
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Danish national, born in 1941 and living in Kolding, Denmark. She is represented before the Court by Mr Kåre Mønsted, a lawyer practising in Copenhagen, Denmark. The respondent Government are represented by their Agent, Mr Hans Klingenberg, The Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
After an interview held in January 1996 the applicant got a job as a telephone operator in a taxi company. She started the job on 4 March 1996, but not until 15 May 1996 was she provided with a written contract in which it was stated inter alia:
“The terms of the employment will be regulated by the Act on salaried employees (Funktionærloven) and a collective agreement entered into with the Trade and Office Worker Union (Handels- og Kontorfunktionærenes Forbund).”
The above collective agreement was entered into in 1995 between, on the one side, the employer and the Danish Taxi Union (Dansk Taxi Forbund) and, on the other side, the Trade and Office Worker Union, henceforth called HK and its local office in the area where the employer company is situated. According to the agreement the employer would only employ telephone operators and office workers who were members of HK.
At the end of September 1996 the employer became aware that the applicant was not a member of HK, but of another trade union, and on 1 October 1996 the applicant was dismissed because she refused to become a member of HK.
The applicant instituted proceedings before the High Court of Western Denmark (Vestre Landsret) against the employer, Danish Taxi Union, HK and its local office claiming compensation and requesting that they be ordered to recognise that her dismissal and the above closed shop agreement was unlawful. She alleged that since she was not aware of this agreement at the time of her employment the dismissal was a violation of section 2, subsection 1 of the Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982, as amended on 13 June 1990 (Lov om beskyttelse mod afskedigelse på grund af foreningsforhold). Moreover, she alleged that the closed shop agreement itself violated Article 11 of the Convention as it allegedly allows an employer to require that an employee must be a member of an association or a specific association in order to obtain employment. By judgment of 13 August 1998 the High Court granted the applicant compensation in the amount of 151,087.90 Danish kroner (DKK) as it found it established that the applicant was not aware of the agreement at the time of her employment. Therefore, there had been an infringement of section 2, subsection 1 of the Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982. However, as to closed shop agreements in general the court stated inter alia as follows:
“Article 11 of the European Convention on Human Rights secures the classical freedom of assembly and association including the right to form and join trade unions. By the British Rail judgment (the Young, James and Webster v. UK judgment, Series A no. 44) it was established that in certain circumstances Article 11 also secures the negative right to freedom of association. This judgment resulted in the Parliament’s passing of the Danish Act on Protection against Dismissal due to Association Membership.
Following the passing of this Act the Court of Human Rights has pronounced other judgments concerning the extent of Article 11 of the Convention. The applicant has submitted these judgments, notably the Sigurjόnsson v. Iceland judgment of 1993 in support of her claim that section 2, subsection 2 and subsection 3 of the Act on Protection against Dismissal due to Association Membership are at variance with Article 11 of the Convention.
However, these last judgments have not resulted in any Danish Government Bills with a view to amend the Act on Protection against Dismissal due to Association Membership. On the contrary, the Minister of Labour recently ... declared in Parliament that it was the Government’s view that closed shop agreements do not infringe human rights and that Denmark does comply with its international obligations.
The Danish Act of 1992 (No. 285 of 29 April 1992) incorporated the Convention on Human Rights into Danish law. According to the preparatory notes the incorporation did not intend to change the existing balance between the Danish Parliament and the Danish courts. Therefore, the Parliament still has a considerable discretion when laying down Danish law.
Thus, since the Danish Act on Protection against Dismissal due to Association Membership was passed in order to comply with Article 11 of the Convention, and since the exceptions mentioned in section 2, subsection 2 and 3 of the Act are formulated very precisely, and since a decision that sets aside or limits the existing possibility to enter into closed shop agreements would have far-reaching consequences for the Danish labour market, the High Court finds it appropriate to leave it to the legislature to decide whether the previous case-law from the Court of Human Rights concerning Article 11 does require an amendment of the Act on Protection against Dismissal due to Association Membership.”
On appeal, the Supreme Court (Højesteret) on 12 May 2000 upheld the High Court’s judgment. In its reasoning the Supreme Court stated inter alia as follows:
“Act no. 285 of 9 June 1982 on Protection against Dismissal due to Association Membership was passed, notably in order to comply with the negative right to freedom of association to the extent an obligation thereto could be established according to the interpretation of Article 11 of the Convention given by the Court of Human Rights in the Young, James and Webster v. UK judgment Series A no. 44 (British Rail).
As stated in the Supreme Court’s judgment of 6 May 1999 (concerning application no. 52620/99 Jensen and Rasmussen v. Denmark) and of 8 June 1999 (concerning application no. 52562/99 Sørensen v. Denmark) the latest judgments from the Court of Human Rights give no reason to asses the lawfulness of closed shop agreements and their consequences any differently than what appears from the British Rail judgment. In the Supreme Court’s view neither does the Chassagnou and others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III).”
Thus, as mentioned above, in two other cases, the Supreme Court decided by judgments of 6 May 1999 and 8 June 1999, respectively, on the lawfulness of closed shop agreements in relation to the Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982 and in relation to the European Convention for the Protection of Human Rights and Fundamental Freedoms and found that closed shop agreements as such are not contrary to Article 11 of the Convention as the provision has been interpreted by the Court.
Section 78 of the Danish Constitution (Danmarks Riges Grundlov) provides:
1. Citizens shall, without previous permission, be free to form associations for any lawful purpose.
2. Associations employing violence, or aiming at the attainment of their object by violence, by instigation to violence, or by similar punishable influence on persons holding other views, shall be dissolved by a court judgment.
3. No association shall be dissolved by any government measure; but an association may be temporarily prohibited, provided that immediate proceedings be taken for its dissolution.
4. Cases relating to the dissolution of political associations may, without special permission, be brought before the Supreme Court (Rigets øverste domstol).
5. The legal effects of the dissolution shall be determined by statute.
The Danish Act on Protection against Dismissal due to Association Membership of 9 June 1982 (which was passed as a direct result of the Court’s ruling in 1981 in the Young, James and Webster v. UK judgment, Series A no. 44), amended by Act no. 347 of 29 May 1990, reads in as far as relevant:
Section 1
An employer may not dismiss an employee on the grounds that he or she is a member of an association or of a certain association.
Section 2
1. An employer may not dismiss an employee on the grounds that he or she is not a member of an association or of a certain association
2. Subsection 1 does not apply if the employee, prior to recruitment, knew that the employer made membership of an association or of a specific association a condition for being employed with the enterprise.
3. Subsection 1 is furthermore not applicable when the employee, who is a member of an association, subsequent to the employment is informed that membership is a condition for continued employment with the enterprise
Section 3
Sections 1 and 2 of the Act do not apply to employees who are employed by employers whose business specifically aims at furthering a political, ideological, religious or cultural purpose and the membership of the person concerned must be considered of importance for the business.
Section 4
Where an employee is dismissed contrary to the provisions of this Act, the dismissal must be overruled and the employment continued or restored, if so claimed. However, this does not apply to employees in the private sector if, in special cases and following a balancing of the interest of the parties, it is found obviously unreasonable to claim continuation or restoration of the employment.
Section 4.a
1. Where an employee is dismissed contrary to the provisions of this Act without the dismissal being overruled, the employer shall pay compensation.
. If the employment has lasted for at least two years, such compensation may not be less than three months’ salary or wages.
Section 4.b
1. Cases under this Act must be processed as quickly as possible.
2. During the hearing of a case concerning dismissal, the court may order that the dismissal will not become effective until the case has been finally decided by a judgment. The judgment may stipulate that the dismissal will not be stayed in case of an appeal.
The Act on Private Contributions to Political Parties and Disclosure of the Accounts of Political Parties, No. 404 of 13 June 1990 (Lov om private bidrag til politiske partier og offentliggørelse af politiske partiers regnskaber) as amended by Act No. 394 of 14 June 1995 reads in as far as relevant:
Section 1
Employers’ federations, trade unions and other trade associations whose main objectives are to attend to the economic interests of the trade group to which their members belong shall ensure that any financial contribution to political parties or for party political purposes in general collected as part of partnership fees are collected on a voluntary basis for the individual member.
Section 2
1. A member, who wants to be exempt from payment of contributions to political parties or for political purposes in general as part of the membership fees shall submit a written declaration to this effect.
2. Once a year the association shall forward to its members a form containing the wording of such declaration. Publishing the form in a members’ journal or a similar publication can fulfil such obligation. The declaration must have the following wording: “I want to be exempt from payment of contributions to political parties or for party political purposes in general as part of my membership fees”
3. The declaration must be forwarded to the auditor of the association. This must appear from the form referred to in subsection 2 hereof. Declarations forwarded to association offices by the members must be re-forwarded to the auditor immediately. The Minister of Justice may lay down further provisions on the layout of the form and auditors’ treatment of declarations received.
4. Information on the persons who are exempt from payment of contributions or who have made a request to this effect may not be subject to any unauthorised disclosure.
Below is a general description of the background of closed shop agreements in the Danish labour market.
The struggle at the end of the 19th century between on the one side employees and their unions (notably what is today called the LO, i.e. the Danish Federation of Trade Unions) and on the other side the employers and their federations (mainly the central organisation DA, i.e. the Danish Employers Confederation) resulted in the so-called September Agreement from 1899 between the LO and the DA. The Agreement laid down five major principles:
1. the right of employees to organise in trade unions;
2. the right of the employers to manage and control work;
3. the right to industrial actions (strike, boycott and lockout) to obtain
e.g. a collective agreement;
4. the embargo on industrial action, which means that no strikes are
lawful during the term of a collective agreement;
5. the establishment of a special arbitration tribunal to deal with all
violations of the September Agreement.
The September Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners. By tradition the Danish legislature plays a minor role as regards governing wages, salaries and employment conditions. Therefore, only to a limited extent does the Danish labour marked have legislation, which does not emanate from EU Directives, e.g. the Salaried Employees’ Act (Funktionærloven) and the Danish Holiday Act (Ferieloven). Accordingly, rights imposed by statute in other countries have in Denmark been obtained by agreements between the labour market partners. It is thus characteristic of Danish law that the relationship between employers and employees is basically governed by a combination of agreements (collective and individuals), labour law principles and general statutes and rules laid down in pursuance of statutes. More than 80 per cent of all employees in Denmark are union members.
From figures provided by Danish Statistic (Danmarks Statistikbank) and the Ministry of Employment (Beskæftigelsesministeriet), in 2001 the Danish workforce consisted of 2,799,958 persons (inclusive unemployed). Thereof 1,611,715 were employed within the private sector and 937,826 within the public sector.
The Government estimates that nearly 80 per cent of all employees are comprised by collective agreements. The applicant disagrees with this estimation.
The institution of closed shop agreements is of long standing in Denmark. Typically a closed shop agreement states that an employer has undertaken only to hire and employ members of the trade union that is party to the collective agreement concluded by the employer. Closed shop agreements are unlawful in the public sector labour market and they are not concluded in the part of the private sector labour market, which is comprised by the general agreement between the DA and the LO, because DA considers the use of closed shop provisions as an interference with the employers’ managerial right. Thus, closed shop agreements are mainly of importance in collective agreements concluded with unorganised employers.
The precise number of employees covered by closed shop agreements is unknown. However, from figures provided by DA and the Christian Trade Union the Government estimate that between 220,000 and 230,000 wages earners are affected in some way by closed shop agreements, thereby affecting less than 10 per cent of all Danish employees on the labour market. The applicant submits that this estimation probably is somewhat below the actual figure.
After the election in Denmark on 20 November 2001 the new Government decided to procure a report on closed shop agreements. The report was submitted in June 2002 (Betænkning nr. 1419, Udvalget om eksklusivbestemmelser) and recommended that closed shop agreement be prohibited.
The preparatory notes to Article 11 of the Convention
The preparatory notes to Article 11 of the Convention (Report of 19 June 1950 of the Conference of Senior Officials, Collected Edition of the “Travaux Préparatoires”, vol. IV, p. 262) state inter alia:
“On account of the difficulties raised by the ‘closed shop system’ in certain countries, the Conference in this connection considered it undesirable to introduce into the Convention a rule under which ‘no one may be compelled to belong to an association’ which features in [Article 20 § 2] of the United Nations Universal Declaration”.
The European Social Charter 1961
Article 5 of the European Social Charter provides for the following “right to organise”:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
In its Conclusions XIV-1 and XV-1 the European Committee of Social Rights found that the Danish Act on Protection against Dismissal due to Association Membership infringes on Article 5 of the Social Charter of the Council of Europe, in so far as an employee can be dismissed if the employee prior to recruitment knew that membership of a certain union was a condition for being employed with the enterprise (section 2, subsections 2 and 3 of the Act). On this basis the Governmental Committee of the Social Charter in its 14’th (1999) and 15’th report (2000) recommended to the Committee of Ministers that a recommendation in this respect be adopted with regard to Denmark. On 7 February 2001 at the 740’th meeting of the Minister’s Deputies, lacking the majority required, the proposal for the said recommendation was not adopted.
In its Conclusions XVI-1 the European Committee of Social Rights stated inter alia:
“The situation in Denmark is not in conformity with Article 5 of the Charter for the following reasons:
Closed shop clauses are permitted in national law, as illustrated by the decisions of the Danish Supreme Court summarised in the report. Clauses or practices of this kind violate the right to freedom of association”
Subsequently, in September 2002 the Danish Government informed the Governmental Committee of the European Social Charter of its intentions to introduce a bill prohibiting closed shop agreements. The Governmental Committee therefore decided to await the next assessment by the European Committee of Social Rights.
ILO
Conventions no. 87 and 98 under the International Labour Organisation protects inter alia the positive aspects of the freedom of association. As regards the issue of closed shop agreements the International Labour Organisation considers this as a national matter.


ITEMID: 001-59617
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
JUDGES: Nicolas Bratza
TEXT: 10. Refah was founded on 19 July 1983. It took part in a number of general and local elections, ultimately obtaining approximately 22% of the votes in the general election of 1995 and about 35% of the votes in the local elections of 3 November 1996.
The results of the 1995 general election made Refah the largest political party in the Turkish parliament with a total of 158 seats in the Grand National Assembly (out of 450 altogether). On 28 June 1996 Refah came to power by forming a coalition government with the centre-right True Path (Doğru Yol) Party, led by Mrs Tansu Ciller.
11. On 21 May 1997 Principal State Counsel at the Court of Cassation applied to the Turkish Constitutional Court to have Refah dissolved on the grounds that it was a “centre” (mihrak) of activities contrary to the principles of secularism. In support of his application, he referred to the following acts and remarks by leaders and members of Refah.
– Whenever they spoke in public Refah’s chairman and other leaders advocated the wearing of Islamic headscarves in State schools and buildings occupied by public administrative authorities, whereas the Constitutional Court had already ruled that this infringed the principle of secularism enshrined in the Constitution.
– At a meeting on constitutional reform Refah’s chairman, Necmettin Erbakan, had made proposals tending towards the abolition of secularism in Turkey. He had suggested that the adherents of each religious movement should obey the rules of their own organisations rather than Turkish law.
– On 13 April 1994 Necmettin Erbakan had asked Refah’s representatives in the Grand National Assembly to consider whether the change in the social order which the party sought would be “peaceful or violent” and would be achieved “harmoniously or by bloodshed”.
– At a seminar held in January 1991 in Sivas Necmettin Erbakan had called on Muslims to join Refah, saying that only his party could establish the supremacy of the Koran through a holy war (jihad) and that Muslims should therefore make donations to Refah rather than distributing alms to third parties.
– During Ramadan Necmettin Erbakan had received the heads of the Islamist movements at the residence reserved for the Prime Minister, thus assuring them of his support.
– Several members of Refah, including some in high office, had made speeches calling for the secular political system to be replaced by a theocratic regime. These persons had also advocated the elimination of the opponents of this policy, if necessary by force. Refah, by refusing to open disciplinary proceedings against the members concerned and even, in certain cases, facilitating the dissemination of their speeches, had tacitly approved the views expressed.
– On 8 May 1997 a Refah MP, İbrahim Halil Çelik, had said in front of journalists in the corridors of the parliament building that blood would flow if an attempt was made to close the “İmam-Hatip” theological colleges, that the situation might become worse than in Algeria, that he personally wanted blood to flow so that democracy could be installed in the country, that he would strike back against anyone who attacked him and that he would fight to the end for the introduction of Islamic law (sharia).
– The Minister of Justice, Şevket Yılmaz (a Refah MP and vice-chairman of the party), had expressed his support for the mayor of Sincan by visiting him in the prison where he had been detained pending trial after being charged with publicly vindicating international Islamist terrorist groups.
Principal State Counsel further observed that Refah had not opened any disciplinary proceedings against those responsible for the above-mentioned acts and remarks.
12. On 7 July 1997 Principal State Counsel submitted new evidence against Refah to the Constitutional Court.
13. On 4 August 1997 Refah’s representatives filed their defence submissions, in which they relied on international human-rights-protection instruments, including the Convention, pointing out that these instruments formed part of Turkish written law. They further referred to the case-law of the Commission, which had expressed the opinion that Article 11 of the Convention had been breached in the cases concerning the Turkish United Communist Party and the Socialist Party, and to the case-law of the Court and the Commission on the restrictions on freedom of expression and freedom of association authorised by the second paragraphs of Articles 10 and 11 of the Convention. They contended that the dissolution of Refah had not been prompted by a pressing social need and was not necessary in a democratic society. Nor, according to Refah’s representatives, was their party’s dissolution justified by application of the “clear and present danger” test laid down by the Supreme Court of the United States of America.
14. Refah’s representatives further rejected Principal State Counsel’s argument that the party was a “centre” of activities which undermined the secular nature of the Republic. They submitted that Refah was not caught by the criteria laid down in the Law on the regulation of political parties for determining whether a political party constituted a “centre of activities contrary to the Constitution”. They observed, inter alia, that the prosecuting authorities had not issued any warning to Refah (which had four million members) that might have enabled it to expel any of its members whose acts had contravened the provisions of the Criminal Code.
15. Refah’s representatives also set out their point of view on the concept of secularism. They asserted that the principle of secularism implied respect for all beliefs and that Refah had shown such respect in its political activity.
16. The applicants’ representatives alleged that in accusing Necmettin Erbakan of supporting the use of force to achieve political ends and of infringing the principle of secularism the prosecuting authorities had merely cited extracts from his speeches which they had distorted and taken out of context. Moreover, these remarks were covered by Mr Erbakan’s parliamentary immunity. They further noted that the dinner Mr Erbakan had given to senior officials of the Religious Affairs Department and former members of the theology faculty had been presented by Principal State Counsel as a reception organised for the leaders of religious movements, which had in any event been legally proscribed since 1925.
17. With regard to the remarks of other Refah leaders and members criticised by Principal State Counsel’s office, Refah’s representatives observed that these did not constitute any criminal offence.
They asserted that none of the MPs concerned was authorised to represent Refah or held office within the party and claimed that the prosecuting authorities had not set in motion the procedure laid down in the Law on the regulation of political parties so as to give Refah the opportunity, if the need arose, to decide whether or not the persons concerned should continue to be members of the party; the first time Refah’s leadership had been informed of the remarks criticised in the case had been when they read Principal State Counsel’s submissions. The three MPs under attack had been expelled from the party, which had thus done what was necessary to avoid becoming a “centre” of illegal activities within the meaning of the Law on the regulation of political parties.
18. On 5 August 1997 Principal State Counsel filed his observations on the merits of the case with the Constitutional Court. He submitted that according to the Convention and the case-law of the Turkish courts on constitutional law issues nothing obliged States to tolerate the existence of political parties that sought the destruction of democracy and the rule of law. He contended that Refah, by describing itself as an army engaged in a jihad and by openly declaring its intention to replace the Republic’s statute law by sharia, had demonstrated that its objectives were incompatible with the requirements of a democratic society. Refah’s aim to establish a plurality of legal systems (in which each group would be governed by a legal system in conformity with its members’ religious beliefs) constituted the first stage in the process designed to substitute a theocratic regime for the Republic.
19. In their observations on the merits of the case Refah’s representatives again argued that the dissolution of their party could not be grounded on any of the restrictions permitted by the second paragraph of Article 11 of the Convention. They went on to say that Article 17 of the Convention was not applicable in the case, as Refah had nothing in common with political parties which sought to instal a totalitarian regime. Furthermore, the plurality of legal systems which it proposed was actually intended to promote the freedom to enter into contracts and the freedom to choose which court should have jurisdiction.
20. On 11 November 1997 Principal State Counsel submitted his observations orally. On 18 and 20 November 1997 Necmettin Erbakan submitted his oral observations on behalf of Refah.
21. In a judgment of 9 January 1998 the Constitutional Court, referring to Article 68 § 6 of the Constitution, ruled that the second paragraph of section 103 of the Law on the regulation of political parties was unconstitutional and declared it null and void. That provision, taken together with section 101(d) of the same Law, provided that for a political party to be considered a “centre” of activities contrary to the elementary principles of the Republic its members had to have been convicted of criminal offences. According to the Constitutional Court, that statutory restriction did not cover all cases contrary to the principles of the Republic. It pointed out, among other observations, that after the repeal of Article 163 of the Turkish Criminal Code activities contrary to the principle of secularism no longer attracted criminal penalties.
22. On 16 January 1998 the Constitutional Court dissolved Refah on the ground that it had become a “centre of activities contrary to the principle of secularism”. It based its decision on sections 101(b) and 103(1) of Law no. 2820 on the regulation of political parties. It also ordered the transfer of Refah’s assets to the Treasury as an automatic consequence of dissolution, in accordance with section 107 of Law no. 2820.
23. In its judgment the Constitutional Court first dismissed the preliminary objections raised by Refah. In that connection it held that the parliamentary immunity of the MPs whose remarks had been mentioned in Principal State Counsel’s submissions of 21 May 1997 had nothing to do with consideration of an application for the dissolution of a political party and temporary forfeiture by its members of certain political rights, but was a question of the criminal responsibility of the MPs concerned, which was not a matter of constitutional law.
24. With regard to the merits, the Constitutional Court held that while polutical parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions. In particular, activities by them incompatible with the rule of law could not be tolerated. The Constitutional Court referred to the provisions of the Constitution which imposed respect for secularism on the various organs of political power. It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life. The Constitutional Court observed that secularism was one of the indispensable conditions of democracy. In Turkey the principle of secularism was safeguarded by the Constitution, on account of the country’s historical experience and the specific features of Islam. The democratic regime was incompatible with the rules of sharia. The principle of secularism prevented the State from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law. Intervention by the State to preserve the secular nature of the political regime had to be considered necessary in a democratic society.
25. The Constitutional Court held that the following evidence proved that Refah had become a “centre of activities contrary to the principle of secularism”:
- Refah’s chairman, Necmettin Erbakan, had encouraged the wearing of Islamic headscarves in public and educational establishments. On 10 October 1993, at the party’s Fourth Ordinary General Meeting, he had said:
“... when we were in government, for four years, the notorious Article 163 of the Persecution (Torture) Code was never applied against any child in the country. In our time there was never any question of hostility to the wearing of headscarves...”
In his speech of 14 December 1995 before the general election he had said:
“... [university] chancellors are going to retreat before the headscarf when Refah comes to power”.
But manifesting one’s religion in such a manner amounted to exerting pressure on persons who did not follow that practice and created discrimination on the ground of religion or beliefs. That finding was supported by various rulings of the Constitutional Court and the Supreme Administrative Court and by the case-law of the European Commission of Human Rights on applications nos. 16278/90 and 18783/91 concerning the wearing of headscarves at universities.
- The plurality of legal systems proposed by Necmettin Erbakan was nothing to do with the freedom to enter into contracts as Refah claimed, but was an attempt to establish a distinction between citizens on the ground of their religion and beliefs and was aimed at the installation of a theocratic regime. On 23 March 1993 Mr Erbakan had made the following speech to the National Assembly:
“... ‘you shall live in a manner compatible with your beliefs’. We want despotism to be abolished. There must be several legal systems. The citizen must be able to choose for himself which legal system is most appropriate for him, within a framework of general principles. Moreover, that has always been the case throughout our history. In our history there have been various religious movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace. Why, then, should I be obliged to live according to another’s rules? ... The right to choose one’s own legal system is an integral part of the freedom of religion.”
In addition, Mr Erbakan had spoken as follows on 10 October 1993 at a Refah party conference:
“... We shall guarantee all human rights. We shall guarantee to everyone the right to live as he sees fit and to choose the legal system he prefers. We shall free the administration from centralism. The State which you have installed is a repressive State, not a State at the people’s service. You do not allow the freedom to choose one’s code of law. When we are in power a Muslim will be able to get married before the mufti, if he wishes, and a Christian will be able to marry in church, if he prefers.”
- The plurality of legal systems advocated by Mr Erbakan in his speeches had its origin in the practice introduced in the first years of Islam by the “Medina Agreement”, which had given the Jewish and polytheist communities the right to live according to their own legal systems, not according to Islamic law. On the basis of the Medina Agreement some Islamist thinkers and politicians had proposed a model of peaceful co-existence under which each religious group would be free to choose its own legal system. Since the foundation of the Nizam party in 1970 (dissolved by the Decree of 2 May 1971) Mr Erbakan had been seeking to replace the single legal system with a plurality of legal systems and thus destroy legislative and judicial unity, which were preconditions for secularism and the consciousness of nationhood.
- In addition, Mr Erbakan had made a speech on 13 April 1994 to the Refah group in parliament in which he had advocated setting up a theocratic regime, if necessary through force:
“The second important point is this: Refah will come to power and a just [social] order (adil düzen) will be established. The question we must ask ourselves is whether this change will be violent or peaceful; whether it will entail bloodshed. I would have preferred not to use those terms, but in the face of all that, in the face of terrorism, and so that everyone can see the true situation clearly, I feel obliged to do so. Today Turkey must take a decision. The Welfare Party will establish a just order, that is certain. [But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed? The sixty million [citizens] must make up their minds on that point.”
- The reception given by Necmettin Erbakan at the Prime Minister’s residence to the leaders of the various religious movements, who had attended in vestments denoting their religious allegiance, clearly evidenced Refah’s chairman’s support for these religious groups vis-à-vis public opinion.
- In a public speech in April 1994 Şevki Yılmaz, MP for the province of Rize, had issued a clear call to wage a holy war (jihad) and had argued for the introduction of Islamic law, making the following declaration:
“We shall certainly call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s messenger of his jurisdiction in their country.”
In another public speech, also in April 1994, Şevki Yılmaz had said:
“In the hereafter you will be summoned with the leaders you have chosen in this life. ... Have you considered to what extent the Koran is applied in this country? I have done the sums. Only 39% [of the rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly forgotten ... You found a Koranic school, you build a hostel, you pay for a child’s education, you teach, you preach. ... None of that is part of the chapter on jihad but of that on the amel-i salih (peacetime activities). Jihad is the name given to the quest for power for the advent of justice, for the propagation of justice and for glorification of Allah’s Word. Allah did not see that task as an abstract political concept; he made it a requirement for warriors (cahudi). What does that mean? That jihad must be waged by an army! The commander is identified... The condition to be met before prayer (namaz) is the islamisation of power. Allah says that, before mosques, it is the path of power which must be Muslim... It is not erecting vaulted ceilings in the places of prayer which will lead you to Paradise. For Allah does not ask whether you have built up vaulted ceilings in this country. He will not ask that. He will ask you if you have reached a sufficient level ... today, if Muslims have a hundred books, they must give thirty to the Koranic schools, to train our children, girls and boys, and the sixty remaining books must be given to the political establishments which open the road to power. Allah asked all his prophets to fight for power. You cannot name a single member of a religious movement who does not fight for power. I tell you, if I had as many heads as I have hairs on my head, even if each of those heads were to be torn from my shoulders for following the way of the Koran, I would not abandon my cause... The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’ Erbakan and his friends want to bring Islam to this country in the form of a political party. The prosecutor understood that clearly. If we could understand that as he did, the problem would be solved. Even Abraham the Jew has realised that in this country the symbol of Islam is Refah. He who incites the Muslim community (cemaat) to take up arms before political power is in Muslim hands is a fool, or a traitor doing the bidding of others. For none of the prophets authorised war before the capture of State power. ... Muslims are intelligent. They do not reveal how they intend to beat their enemy. The general staff gives orders and the soldiers obey. If the general staff reveals its plan, it is up to the commanders of the Muslim community to make a new plan. Our mission is not to talk, but to apply the war plan, as soldiers in the army...”
Criminal proceedings had been brought against Şevki Yılmaz. Although his antipathy to secularism was well-known, Refah had adopted him as a candidate in local-government elections. After he had been elected mayor of Rize, Refah had made sure that he was elected as an MP in the Turkish Grand National Assembly.
- In a public speech on 14 March 1993 and a television interview first recorded in 1992 and rebroadcast on 24 November 1996, Hasan Hüseyin Ceylan, Refah MP for the province of Ankara, had encouraged discrimination between believers and non-believers and had predicted that if the supporters of applying sharia came to power they would annihilate non-believers:
“Our homeland belongs to us, but not the regime, dear brothers. The regime and Kemalism belong to others. ... Turkey will be destroyed, gentlemen. People say: Could Turkey become like Algeria? Just as, in Algeria, we got 81% [of the votes], here too we will reach 81%, we will not remain on 20%. Do not waste your energy on us– I am speaking here to you, to those ... of the imperialist West, the colonising West, the wild West, to those who, in order to unite with the rest of the world, become the enemies of honour and modesty, those who lower themselves to the level of dogs, of puppies, in order to imitate the West, to the extent of putting dogs between the legs of Muslim women – it is to you I speak when I say: ‘Do not waste your energy on us, you will die at the hands of the people of Kırıkkale.’”.
“... the army says: ‘We can accept it if you’re a supporter of the PKK, but a supporter of sharia, never.’ Well you won’t solve the problem with that attitude. If you want the solution, it’s sharia.”
Refah had ensured that Ceylan was elected as an MP and its local branches had played videotapes of this speech and the interview.
- Refah’s vice-chairman, Ahmet Tekdal, in a speech he made in 1993 while on pilgrimage in Saudi Arabia which was shown by a Turkish television station had said that he advocated installing a regime based on sharia:
“In countries which have a parliamentary regime, if the people are not sufficiently aware, if they do not work hard enough to bring about the advent of ‘hak nizami’ [a just order or God’s order], two calamities lie ahead. The first calamity is the renegades they will have to face. They will be tyrannised by them and will eventually disappear. The second calamity is that they will not be able to give a satisfactory account of themselves to Allah, as they will not have worked to establish ‘hak nizami’. And so they will likewise perish. Venerable brothers, our duty is to do what is necessary to introduce the system of justice, taking all these subtleties into consideration. The political apparatus which seeks to establish ‘hak nizami’ in Turkey is the Welfare Party.”
- On 10 November 1996 the governor of Kayseri province, Şükrü Karatepe, had urged the population to renounce secularism and asked his audience to “keep their hatred alive” until the regime was changed, in the following terms:
“The dominant forces say ‘either you live as we do or we will sow discord and corruption among you’. So even Welfare Party Ministers dare not reveal their world-outlook inside their Ministries. This morning I too attended a ceremony in my official capacity. When you see me dressed up like this in all this finery, don’t think it’s because I’m a supporter of secularism. In this period when our beliefs are not respected, and indeed are blasphemed against, I have had to attend these ceremonies in spite of myself. The Prime Minister, other Ministers and MPs have certain obligations. But you have no obligations. this system must change. We have waited, we will wait a little longer. Let us see what the future has in store for us. And let Muslims keep alive the resentment, rancour and hatred they feel in their hearts.”
Mr Karatepe had been convicted of inciting the people to hatred on the ground of religion.
- On 8 May 1997 İbrahim Halil Çelik, Refah MP for the province of Şanlıurfa, had spoken in parliament in favour of the establishment of a regime based on sharia and approving acts of violence like those which were taking place in Algeria:
“If you attempt to close down the “İmam-Hatip” theological colleges while the Welfare Party is in government, blood will flow. It would be worse than in Algeria. I too would like blood to flow. That’s how democracy will be installed. And it will be a beautiful thing. The army has not been able to deal with 3,500 members of the PKK. How would it see off six million Islamists? If they piss into the wind they’ll get their faces wet. If anyone attacks me I will strike back. I will fight to the end to introduce sharia.”
Çelik had been expelled from the party one month after the application for dissolution had been lodged. His exclusion was probably only an attempt to evade the penalty in question.
- Refah’s vice-chairman, the Minister of Justice, Şevket Kazan, had visited a person detained pending trial for activities contrary to the principle of secularism, thus publicly lending him his support as a Minister.
26. On the basis of the evidence adduced on 7 July 1997 by Principal State Counsel’s office, the Constitutional Court held that the following further evidence confirmed that Refah was a centre of activities contrary to the principle of secularism:
- In a public speech on 7 May 1996 Necmettin Erbakan had emphasised the importance of television as an instrument of propaganda in the holy war being waged in order to establish Islamic order:
“... A State without television is not a State. If today, with your leadership, you wished to create a State, if you wanted to set up a television station, you would not even be able to broadcast for more than twenty-four hours. Do you believe it is as easy as that to create a State? That’s what I told them ten years ago. I remember it now. Because today people who have beliefs, an audience and a certain vision of the world, have a television station of their own, thanks be to God. It is a great event.
Conscience, the fact that the television [channel] has the same conscience in all its programmes, and that the whole is harmonious, is very important. A cause cannot be fought for without [the support of] television. Besides, today we can say that television plays the role of artillery or an air force in the jihad, that is the war for domination of the people ... it would be unthinkable to send a soldier to occupy a hill before those forces had shelled or bombed it. That is why the jihad of today cannot be waged without television. So, for something so vital, sacrifices must be made. What difference does it make if we sacrifice money? Death is close to all of us. When everything is black, after death, if you want something to show you the way, that something is the money you give today, with conviction, for Channel 7 (Kanal 7). It was to remind you of that that I shared my memories with you.
... That is why, from now on, with that conviction, we will truly make every sacrifice, until it hurts. May those who contribute, with conviction, to the supremacy of [Allah] be happy. May Allah bless you all, and may He grant Channel 7 even more success. Greetings.”
- By a decree of 13 January 1997 the cabinet (in which the Refah members formed a majority) had reorganised working hours in public establishments to make allowances for fasting during Ramadan. The Supreme Administrative Court had annulled this decree on the ground that it undermined the principle of secularism.
27. The Constitutional Court observed that it had taken into consideration international human-rights-protection instruments, including the Convention. It also referred to the restrictions authorised by the second paragraph of Article 11 and Article 17 of the Convention. It pointed out in that context that Refah’s leaders and members were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia. It held that where a political party pursued activities aimed at bringing the democratic order to an end and used its freedom of expression to issue calls to action to achieve that aim, the Constitution and supranational human-rights-protection rules authorised its dissolution.
28. The Constitutional Court observed that the public statements of Refah’s leaders, namely those of Necmettin Erbakan, Şevket Kazan and Ahmet Tekdal, had directly engaged Refah’s responsibility with regard to the constitutionality of its activities. It further observed that the public statements made by MPs Şevki Yılmaz, Hasan Hüseyin Ceylan and İbrahim Halil Çelik had likewise engaged the party’s responsibility since it had not reacted to them in any way or sought to distance itself from them, or at least not before the commencement of the dissolution proceedings.
29. As an additional penalty, the Constitutional Court decided to strip Necmettin Erbakan, Şevket Kazan, Ahmet Tekdal, Şevki Yılmaz, Hasan Hüseyin Ceylan and İbrahim Halil Çelik of MP status, in accordance with Article 84 of the Constitution. It found that these persons, by their words and deeds, had caused Refah’s dissolution. The Constitutional Court also banned them for five years from becoming founder members, ordinary members, leaders or auditors of any other political party, pursuant to Article 69 § 8 of the Constitution.
30. Judges Haşim Kılıc and Sacit Adalı expressed dissenting opinions stating, inter alia, that in their view the dissolution of Refah was not compatible either with the provisions of the Convention or with the case-law of the European Court of Human Rights on the dissolution of political parties. They observed that political parties which did not support the use of violence should be able to take part in political life and that in a pluralist system there should be room for debate about ideas thought to be disturbing or even shocking.
31. This judgment was published in the Official Gazette on 22 February 1998.
32. The relevant provisions of the Constitution read as follows:
“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”
“No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.”
“Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class. ...”
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.”
“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on such concepts and opinions.”
“No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal interest or influence thereby.”
“The constitutions, rulebooks and activities of political parties shall not be incompatible with the independence of the State, the integrity of State territory and of the nation, human rights, the principles of equality and the rule of law, national sovereignty or the principles of a democratic, secular Republic. No political party may be founded with the aim of advocating and establishing the domination of one social class or group, or a dictatorship in any form whatsoever. ...”
“... The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by Principal State Counsel at the Court of Cassation.”
“... A political party may not be dissolved on account of activities contrary to the provisions of Article 68 § 4 unless the Constitutional Court has held that the political party concerned constitutes a centre of such activities.”
“... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members, leaders or auditors of another political party for a period of five years from the date on which the reasoned decision to dissolve the party is published in the Official Gazette...”
“Forfeiture of the status of member
Where the Council of the Presidency of the Grand National Assembly has validated the resignation of members of parliament, the loss of their status as members shall be decided by the Grand National Assembly in plenary session.
A convicted member of parliament shall not forfeit the status of member until the court which convicted him has notified the plenary Assembly of the final judgment.
A member of parliament who continues to hold an office or carry on an activity incompatible with the status of member, within the meaning of Article 82, shall forfeit that status after a secret ballot of the plenary Assembly held in the light of the relevant committee’s report showing that the member concerned holds or carries on the office or activity in question.
Where the Council of the Presidency of the Grand National Assembly notes that a member of parliament, without valid authorisation or excuse, has failed, for a total of five days in one month, to take part in the work of the Assembly, that member shall forfeit the status of member where by majority vote the plenary Assembly so decides.
The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court’s judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.”
33. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows:
“Political parties
(a) shall not aim or strive to or incite third parties to ... jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ...”
“The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.”
“The Constitutional Court shall dissolve a political party
...
(b) where its general meeting, central office or executive committee ... takes a decision, issues a circular or makes a statement ... contrary to the provisions of Chapter 4 of this Law, or where the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions.
...
(d) Where acts contrary to the provisions of Chapter 4 of this Law have been committed by organs, authorities or councils other than those mentioned in sub-section I(b), State Counsel shall, within two years of the act concerned, require the party in writing to disband those organs and/or authorities and/or councils. State counsel shall [likewise] require, in writing, the permanent exclusion from the party of those members who have been convicted for committing acts or making statements which contravene the provisions of Chapter 4.
State counsel shall lodge an application for the dissolution of any political party which fails to comply with the instructions in his letter within thirty days of its service. If, within thirty days of notification of the application for dissolution lodged by State Counsel, the party disbands the organ, authority or council concerned, or permanently excludes the member or members in question, the dissolution proceedings shall lapse. If not, the Constitutional Court shall consider the case on the basis of the file and shall adjudicate after hearing, if necessary, the oral submissions of State Counsel, the representatives of the political party and all those capable of providing information about the case...”
“Where it is found that a political party has become a centre of activities contrary to the provisions of sections 78 to 88 and section 97 of the present Law, the party shall be dissolved by the Constitutional Court.”
“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”
NON_VIOLATED_ARTICLES: 11
NON_VIOLATED_PARAGRAPHS: 11-1