Hacı Ali Özhan |
The article 78/a of the APP had been listed some undefined abstract concepts and it had been adjudged that there cannot have a contrary objective to this concepts and there cannot be in this kind of activities and cannot be done provocation and encouragement to the others.
This article prohibits on thought statements, which is not turn into an action and just is as an aiming, intending. As a matter of fact in accusation that is the subject of litigation, it had been prohibited the thought statements about the complete of the topic as having a changing objective, bringing it fonvard, having a deforming objective and having a contrary objective.
As it can be seen clearly, while there was no aim to disjoin, only to announce the thoughks, to defend different opinions and to different had been subjected to close down the political party ( for example:TBKP, SP, DEP, HEP, ÖZDEP, STP, EP, DKP...) case by the supreme court of appeals head prosecutor'soffice and had been enough to close downby the constitution court.
Either political party closure does not required for the democratic order of society, ör it is not proportional with the aim of prohibition. By closure of the political party, freedom of organızation right and the rights in article 11, paragraph l of the Act have been infiinged proportionally and unnecessarily by state of Turkish Republic.
The closure judgment that ise because the article 78/a of the APP, the organization right besides thethoughts and opinions in the programof political party been contrary in legal contemplation, which was signed in paragraph 11/1 of Europeean Convention on Human Rights.
It has seen article 11 of the Act as appearing form of freedom of thought statement it has been stated that enjoyment of article 11, the state cannot be contended with ari abstention, which is a negative attitude. And it has been saddle state with a positive (doing) responsibility in freedoms favor, so the state has been obliged to get a precautions, which are oriented with enjoyment of rights.
(Div. K. Plalllorm / Austria-21.6.1988; Div.K. Mutalis/EngJand-13.5.1981; Div. K. Gustafson / Sweden-25.4.1996)
For being dependent on limitations in article 11/2, out of necessity there has to be some conditions, which can provide protection of public safety, public order, preventing of crimes, health, general morals and other rights. On the other hand in a democratic society, this precautions have to be legal proportional with an aim, between enjoyment of right and limitation of it, there has to be a balanced and proportional precautions. in an article 17, there is preventions, which are reîevant rights annihilation and enjoyment of rights as much as the content and aim.
In order to be valid of the exceptions ör prohibitive arbitrament in the article 11/2 for the political party, it is required to be compatible exactly vvith the conditions. For qualifying the proportional, it is necessary to take into consideration of exceptional case's density, duration, quality and level. This relationship has to obtain the aim and tool balance, convenience and sufficiency balance betvveen infringement and aim.
Also, it is important and requİred that this infringement have to be legal, it means public benefit has to be more important than prohibited personal interest and it is obliged that the limitation has to be required
It is important to stress that ali this things should have done in goodwill. Criteria of goodwill here is not a moral, this is a legal öne. it means to be objective and honest.
Any good will can be mentioned of the state, which puts restrictions to oppress the opinions of the democratic, political opposition. Although having judicial discretion of the state in this .subjects, the Council of State supervise this judicial discretion in means reasonable, good will and attentive.
In here, it had been put forvvard the necessity of reaching the solution by the evaluations on this subject by putting oneself in that citizen place not to be contented with the view of the drawee state.
Also, the concept of limitation does not make deprivation of rights if a crisis is being presented.
Similarly, to be reasonable in limitation is another supervision concept.
The commission had given interpretations to the criterions, mentioned above, in TBKP and SP cases. The freedom of organization is not only the establishment of the political party but also the activities of the party freely.
The interference has to result from an imperious social need. The events that were resulted in the closure can be caused to the limitation if the social need; public benefit is being certainly required.
The political party, who are certainly refused the terror and violence and are not being included the situations like that by no manner of means and are not proofed the relationship, are a political party that wants to reach its political targets by democratic-peaceful methods and legal ways and the public opinion are on this sight.
In addition the press, the journalists, who have different opinions, associated opinion is on the point of reaching the targets on the legal ways and are worked on democratic-peaceful methods of political party. Also, the newspapers and the newspaper columnists described to close down the political party as a stroke to the democracy.
The narrow interpretations of the limiting arbitraments against the political parties, which are the important way of the organization freedom, is the accepted interpretation of the Council of State. The Council of State is checking the reasons, which were the justification to the case, whether suffîcient and the acceptable ör not. (The decision of the Council of State and the TBKP and SP commission)
The political party had been closed down if and only if the program without giving any chance to learn the actual target of the party and its administrators. The political party faced with the closure case in its early rnonths and did not fmd a chance to apply its program. So, only the usage of a right, emanated from the free speech, had been punished.
The article 9 of the Convention had given the free thought, the article 10, paragraph l had given the free explanation to the opinions and thought to everyone. in here, everyone cover not only the real persons but also the judicial persons. As a matter of fact, the Council of State determined the free thought explanations of the associations, labor unions and political parties as a different form of free speech in many decisions.
Although being infringed the article 11 by closing down the political party, to be mentioned some thought explanations in the program for the reason of closure is also resulted in infringement to the articles 9 and 10 of the Convention. As a matter of fact, in the TBKP case, the commission and the Council of State decided like " so the action will be punished only the because of the usage of free thought" by saying " the protection of the free thought and speech in the articles 9 and 10 is also taking place in the aims of article 11". (TBKP Commission Decision P60, the Council of State Decision P58) (Y. Vcbsler / United Kingdom- Div. K. 13.8.1991)
Also, the exceptional conditions in 2 paragraph of article 9 and in 2 paragraph of article 10 are not valid in our case. The explanations above about the article 11 on the subjects required conditions; reasonable bounds, convenience, suffîciency and restraint are also valid in here.
The presentation of the articles 78/a, b, 8 1/a, b and 101/a of the APP results in the infringement of the article 9 and 10 of the legal Convention. The clear arbitraments on the named articles of the APP are being forbidden the free thought and speech.
As a matter of fact, an explanation had been done in the paragraphs 43, 50, 57, 58 in the TBKP case. in the decision, the action of implementation of the above article aims with democratic ways by refusing the violence had not beenfind contraryto the articles 9 and 10 of the convention.
Because of the decision of this justification given by the council of state on 30 january 1988, the articles 78/a, b, 8l/a, b, and 101/a of the APP have to be canceled at least agreeable changes have to be made by Turkish Parliament, however the undone changes had been caused to closure of political party.
The constitution cort has to decide according to the evaluations of the council of state decisions, however it had not been done, the only authorized office is the courcil of state to comment on the convention arbitraments. This comment is certain and fixer. While having the decision of TBKP of the council of state, the infringement of the convention had been done by closing down the political party with the same arbitraments of closure of TBKP again.
Haci Ali Özhan............................................................................
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