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e Constitutional Court and the Principle of Secularism
may be questioned, as in fact did the two dissenting judges Kılıç (at that time he was
not yet President of the Court) and Adalı. According to their dissenting opinions,
the 1995 constitutional amendment had been inspired by liberal principles and was
meant to move Turkish public law closer to the Western democratic model. e
requirement that a political party could be dissolved only if it was declared a centre
of unconstitutional ‘activities’ was grounded on the consideration that declarations
could not be considered in a case of party closure. In other words, subversion of the
constitutional order, and not the mere exercise of the right to the freedom of expression
had to be punished. e dissenting judges concluded that the dissolution of the
RP was not consistent with either the European Convention on Human Rights or
the Strasbourg judges’ previous case law. Political parties that do not carry out acts of
violence should be able to take part in the political life of a democracy, which cannot
exist without pluralism and which should allow the expression also of disturbing or
shocking ideas 35 .
It should be stressed that European standards on the dissolution of political parties
are not dened only by the European Court of Human Rights. Although the
Grand Chamber concurred with Turkish authorities that the dissolution of the RP
did not violate the European Convention on Human Rights, other bodies of the
Council of Europe have established stricter and more rigorous requirements that
should be complied with by a democratic country. In its 1999 Guidelines on prohibition
and dissolution of political parties and analogous measures, the Venice Commission,
which was established to advise on constitutional matters and to strengthen
democracy through law, considered that
a political party as a whole can not be held responsible for the individual behaviour of
its members not authorised by the party within the frame of political/public and party
activities. e prohibition or dissolution of political parties as a particularly far-reaching
measure should be used with utmost restraint. Before asking the competent judicial body
to prohibit or dissolve a party, governments or other state organs should assess, having regard
to the situation of the country concerned, whether the party really represents a danger
to the free and democratic political order or to the rights of individuals and whether
other, less radical measures could prevent the said danger. Legal measures directed to the
prohibition or legally enforced dissolution of political parties […] shall be deemed as of
exceptional nature and ruled by the principle of proportionality. Any such measure must
be based on sucient evidence that the party itself and not only individual members
Tatlav: una riconsiderazione del rapporto tra libertà religiosa e laicità in Turchia?, in Quaderni di diritto e
politica ecclesiastica, 2006, p. 827.
35 See also A. Bockel, Le droit constitutionnel turc à l’épreuve européenne. Réexions à partie d’une décision
de la Cour constitutionnelle turque portant dissolution du Parti islamique REFAH, in Revue française de
droit constitutionnel, 1999, p. 922-923.
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