Judgment (Merits and Just Satisfaction) of Court (Grand Chamber), December 08, 1999 (case CASE OF FREEDOM AND DEMOCRACY PARTY (ÖZDEP) v. TURKEY)

JudgeN\/A
DefenseTURKEY
Resolution DateDecember 08, 1999
Issuing OrganizationCourt (Grand Chamber)

CASE OF FREEDOM AND DEMOCRACY PARTY

(ÖZDEP) v. TURKEY

(Application no. 23885/94)

JUDGMENT

STRASBOURG

8 December 1999

In the case of Freedom and Democracy Party (ÖZDEP) v. Turkey,

The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Proto-col No. 11[1], and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges:

             Mr              L. Wildhaber, President,              Mr              A. Pastor Ridruejo,              Mr              G. Bonello,              Mr              L. Caflisch,              Mr              J. Makarczyk,              Mr              P. Kūris,              Mr              J.-P. Costa,              Mrs              F. Tulkens,              Mr              K. Jungwiert,              Mr              M. Fischbach,              Mr              V. Butkevych,              Mr              J. Casadevall,              Mrs              W. Thomassen,              Mrs              H.S. Greve,              Mr              A.B. Baka,              Mrs              S. Botoucharova,              Mr              F. Gölcüklü, ad hoc judge,and also of Mr P.J. Mahoney and Mrs M. de Boer-Buquicchio, Deputy Registrars,

Having deliberated in private on 22 April and on 24 November 1999,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

  1. The case was referred to the Court, as established under former Article 19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 24 September 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 23885/94) against the Republic of Turkey lodged with the Commission under former Article 25 by a Turkish political party, the Freedom and Democracy Party (ÖZDEP), acting through its Chairman, Mr Mevlüt İlik, on 21 March 1994.

    The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 11 of the Convention.

  2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A[2], the applicant party stated that it wished to take part in the proceedings and designated the lawyer who would represent it (former Rule 30). The lawyer was given leave by the President of the Court at the time, Mr R. Bernhardt, to use the Turkish language in the written procedure (former Rule 27 § 3).

  3. As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr Bernhardt, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicant party’s lawyer and the Delegate of the Commission, on the organisation of the written procedure. Pursuant to the order made in consequence on 15 October 1998, the Registrar received the applicant party’s memorial on 6 January 1999 and the Government’s memorial on 8 February 1999.

  4. After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr L. Wildhaber, the President of the Court, Mrs E. Palm, Vice‑President of the Court, and Mr J.-P. Costa and Mr M. Fischbach, Vice‑Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, Mrs F. Tulkens, Mrs V. Strážnická, Mr V. Butkevych, Mr J. Casadevall, Mrs H.S. Greve, Mr A.B. Baka, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4). Subsequently Mrs Palm, Mrs Strážnická and Mr Maruste, who were unable to take part in the further consideration of the case, were replaced by Mr L. Caflisch, Mr K. Jungwiert and Mrs W. Thomassen, substitute judges (Rule 24 § 5 (b)).

  5. On 12 January 1999 Mr Wildhaber exempted Mr Türmen from sitting after his withdrawal from the case in the light of the decision of the Grand Chamber taken in accordance with Rule 28 § 4 in the case of Oğur v. Turkey (application no. 21594/93).

    On 2 February 1999 the Government notified the Registry that Mr F. Gölcüklü had been appointed ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

  6. At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mr J.-C. Geus, to take part in the proceedings before the Grand Chamber.

  7. In accordance with the decision of the President, who had also given the applicant party’s counsel leave to address the Court in Turkish (Rule 34 § 3), a hearing took place in public in the Human Rights Building, Strasbourg, on 22 April 1999.

    There appeared before the Court:

    (a) for the GovernmentMr              D. Tezcan,               Agent,Mr              M. Özmen,              Mrs              D. Akçay,               Co-Agents,Mr              F. Polat,Mrs              I. Batmaz Keremoğlu,Mrs              G. Acar,Mrs              M. Karali,              Advisers;

    (b) for the applicant partyMr              H. Kaplan, of the Istanbul Bar,              Counsel;

    (c) for the CommissionMr              J.-C. Geus,              Delegate.

    The Court heard addresses by Mr Geus, Mr Kaplan and Mr Tezcan.

    THE FACTS

    1. the circumstances of the case

    1. Formation of ÖZDEP

  8. The Freedom and Democracy Party (ÖZDEP) was founded on 19 October 1992. Its constitution was lodged with the Ministry of the Interior the same day. Its programme included the following passages.

    “... Following the war of ‘Liberation’ waged jointly by Kurds, Turks and other national minorities, the Sultanate was abolished in Turkey and the Republic proclaimed.

    The sole aim of the Republic has been to establish national sovereignty. Efforts to unite Turkey with Europe have come to nothing. Turkey has not succeeded in lifting itself out of mediocrity.

    From the earliest days of the Republic, certain parties have had a monopoly on power along with the collaboration of civil and military bureaucrats.

    In order to preserve that monopoly, the policy of those in power has been to refuse to recognise the existence of the Kurdish people and to ignore its most legitimate rights.

    The dominant ‘Turkish’ philosophy has been maintained up to the present day, overriding the most natural rights and claims of the Kurdish people, by means of militaristic and chauvinistic propaganda and a policy of exile and destruction. State policy, based on a capitalist system designed to oppress minorities – particularly Kurdish minorities, but even Turkish ones – has been pursued in the name of modernisation and westernisation.

    Owing to this policy, which colours the political, economic and social aspects of Turkey’s territorial integrity, there is no possibility of this monopoly of State power being brought to an end. That power runs counter to the interests of the vast majority of the population.

    It uses force to impose the present situation on the people in order to preserve its economic interests. Thus, it blocks the way to any democratic process aimed at protecting the interests of Turkish and Kurdish workers.

    The Freedom and Democracy Party proposes to create a system ruled by peace and fraternity in which our peoples will be entitled to self-determination.

    The Freedom and Democracy Party uses political, democratic and ideological means to combat all fascist, fundamentalist, chauvinistic and racist movements or organisations hindering solidarity, unity and brotherhood between peoples.

    Both in domestic and foreign policy, the aim of the Freedom and Democracy Party is to protect the interests of our peoples and those of all workers. ÖZDEP is the guarantor of the cultural, occupational, economic and political values of the various national or religious minorities and of every socio-professional category. It seeks recognition of the right to form a political party.

    Our Party will guarantee the religious and national minorities the right to worship as they please, to practise their religion freely, to freedom of thought and to respect for their customs, cultures and languages. Every individual will be entitled to use the media, especially radio and television.

    ÖZDEP has proposals on how to determine and define the prerequisites for establishing a social order encompassing the Turkish and Kurdish peoples.

    ÖZDEP regards our peoples as the sole owners of the country’s wealth, natural wealth and mineral resources.

    ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle.

    Our Party proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage. This assembly will represent the interests of the Turkish people, the Kurdish people and any other minority.

    This popular and democratic assembly will have the same powers as the current legislature and will be the guarantor of our peoples’ national sovereignty.

    The media will be the moving force for the consolidation of fraternity and friendship between peoples. They will encourage a better approach to different cultures and languages and will guarantee the national identity of each sector of the population. They will be responsible for ensuring that the political, economic, social and cultural rights of the...

To continue reading

Request your trial