Refah Partisi and Others v. Turkey, Nos. 41340/1998 and other 3, ECtHR (Grand Chamber), 13 February 2003

Dissolution of a religiously-oriented political party on the basis of the statements made and the stances adopted by its chairman and some of its members. Political activities against the secular and democratic nature of the national legal order.

Art. 11 ECHR
Art. 9 ECHR

1. Although political parties play an essential role in ensuring pluralism and democracy, the ban of a party is justified where its political programme strives for a State based on sharia.

2. A State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy. Where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime.

3. In view of the very clear link between the Convention and democracy, no one must be authorized to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society.

4. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole.

5. A political party animated by the moral values imposed by a religion cannot be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention, provided that the means used to promote a change in the law or the legal and constitutional structures of the State are legal and democratic and the change proposed is itself compatible with fundamental democratic principles.

6. A plurality of legal systems cannot be considered to be compatible with the Convention system, as it would introduce a distinction between individuals based on religion and, therefore, would firstly do away with the State’s role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of different beliefs and religions and, secondly, would infringe the principle of non-discrimination.

7. Sharia is incompatible with the fundamental principles of democracy, since principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it and a regime based on sharia clearly diverges from Convention values.

8. In accordance with the Convention’s provisions, each Contracting State may oppose political movements based on religious fundamentalism in the light of its historical experience.

(In the present case, the ECtHR found that the ban of a political party accused of being a “centre of activities against the principle of secularism” and planning to introduce sharia and to set up a plurality of legal systems based on religion, without excluding the possibility of having recourse to violent methods, was justified under the Convention).

The Grand Chamber's judgment marks an important overruling of the ECtHR's case law concerning the dissolution of political parties in the Turkish legal order. In the previous cases, where the parties were dissolved primarily on the grounds that the statements in their Constitution or programme or public statements made on behalf of the party served to undermine the integrity or unity of the Republic of Turkey, the ECtHR had always found a violation of article 11 of the Convention.