I

1.1 These written comments are submitted by INTERIGHTS, the International Centre for the Legal Protection of Human Rights, pursuant to permission granted by the President of the Chamber, Judge Costa, in accordance with Rule 61 � 3 of the Rules of Court, by letter dated 4 September 2000. As authorised by that letter, these comments are limited to the provision of relevant comparative materials addressing the general principles involved in the solution of the above-captioned case.

1.2 Specifically, these comments draw substantially upon the statements of legal experts (appended hereto) from nine democratic countries concerning the necessity of restrictions on rights to freedom of expression and association. The countries surveyed are Australia, Belgium, Canada, Germany, Hungary, South Africa, Spain, the United Kingdom and the United States of America.

2.1 INTERIGHTS is a London-based international human rights law centre. It is a registered charity, independent of all ideologies and governments. It provides legal representation in select cases before international human rights fora, advises on legal rights and remedies under international human rights law, and assists lawyers and non-governmental organisations in the preparation of cases before international and regional tribunals. Jointly with other organisations, INTERIGHTS has submitted comments in several prior cases before this Court, including Lingens v. Austria and Wingrove v. United Kingdom.

3.1 This case concerns the dissolution of the Democracy Party and its effect on the applicants, all of whom had been members of that party and elected representatives in the Turkish Grand National Assembly. The dissolution, ordered by the Constitutional Court in June 1994, was based on statements made by Yasar Kaya, Chairman of the DEP, while he was in Germany and Iraq, and a statement issued by the party�s executive committee entitled �Declaration of the Democracy Party: Peace Now.� The dissolution order stripped the applicants of their mandate as members of parliament pursuant to Article 84 � 3 of the Constitution, which has since been amended. The applicants have raised a number of claims based on these events.

3.2 These comments relate to the claims that are based on the right to freedom of expression as guaranteed by Article 10, as well as those claims based on two rights linked to Article 10 � namely, the right to freedom of association as guaranteed by Article 11 and the right of free elections in the choice of legislature as guaranteed by Article 3 of the First Protocol. As the Court has recognised, these three rights enshrine characteristic principles of any �effective political democracy.�[1]

3.3 In assessing whether a violation has occurred, the Court considers first whether the applicants have established that there has been an �interference� of their rights. Where there has been such an interference, the burden of proof then shifts to the government to establish convincingly that the interference was �prescribed by law;� imposed �pursuant to a legitimate aim;� and �necessary in a democratic society� to achieve that aim.[2] These comments address only the final question of necessity.[3]

3.4 In order to determine if a restriction is �necessary,� the Court must assess �whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, [and] whether the reasons given by the national authorities to justify it are relevant and sufficient.�[4] In considering these factors, the Court allows Contracting States a certain �margin of appreciation.� Where a political party�s existence is at issue, however, a Contracting State has �only a limited margin of appreciation.�[5] Bearing this narrow margin in mind, these comments explore the relevant practices of other democratic countries � a factor to consider in assessing a restriction�s necessity.[6]

IV. DISCUSSION

4.1 As explored below and in the attached expert statements, the jurisdictions reviewed here generally uphold restrictions on political speech as necessary only in very extreme circumstances, such as when an expression incites violence. Notably, many of these jurisdictions have active political parties representing cultural or linguistic minorities and in some cases advocating for a separate state.[7] Accordingly, statements which support the recognition of minority rights or advocate for lawful change are unlikely to be prohibited in these countries.

4.2 While all of the reviewed jurisdictions allow for restrictions on the right to freedom of expression to varying degrees, all also recognise that, as an initial matter, freedom of expression is essential for the promotion of political and social debate, which in turn lays the foundation for a healthy democracy. As a unanimous Constitutional Court of South Africa recently stated, in its first judgment concerning free expression:

�Freedom of expression lies at the heart of democracy. It is valuable for many reasons,

including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.�[8]

Speech that is critical of a government or its policies must in particular be tolerated in a democratic society. As this Court has itself observed, �[t]he limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion.�[9] Moreover, �[w]hile precious to all, freedom of expression is particularly important for political parties and their active members. They represent their electorate, draw attention to their preoccupations and defend their interests.�[10]

4.3 In the United States of America, the promotion of open political debate is so highly valued that its Constitution permits virtually no restrictions on political expression or on the information and ideas communicated by elected politicians representing their constituents. This broad First Amendment protection is designed �to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.�[11] In no event would any restriction based on the particular viewpoint of the speaker � including a prohibition of advocacy on behalf of minorities or for an autonomous state � be permissible. Indeed, the only limit on such expression that would be upheld is one that proscribes speech which is �directed to inciting or producing imminent lawless action and is likely to incite or produce such action.�[12]

4.4 While European jurisdictions are not as absolute in their protection of the right to free expression as the United States, the ones examined here are all careful to protect political speech, including statements that are highly critical of government policy. In Spain, for example, where restrictions on political expression are subject to strict scrutiny and elected politicians are granted a wider protection of their speech, the Constitutional Court has held that a protest interrupting the King�s address to the Basque Parliament by members of a political party promoting the independence of the Basque region was constitutionally protected.[13] In another case, the Court held that statements conveying information on terrorist activities or doctrine but not directly advocating violence are not punishable under a criminal code prohibition on the �provocaci�n� of terrorism.[14]

4.5 Similarly, in the United Kingdom, restrictions on speech critical of the government are rarely enforced, and then only under extreme circumstances generally involving an incitement to violence. For example, there has been only one successful prosecution of the common law offence of seditious libel in the past fifty-five years, and that case involved members of an organisation who actively recruited others to take up arms in Northern Ireland. Other restrictions imposed by statutory schemes also generally require the prosecution to prove the use or threat of unlawful violence. Only the offence of incitement to racial hatred has no explicit requirement of violence. Prosecutions of such offences, however, are rare and mostly unrelated to public order problems.[15]

4.6 In Hungary, where political speech is broadly protected, the Constitutional Court has invalidated several restrictions on free expression which failed its strict test of proportionality and necessity. In particular, in addition to following the Lingens standard established by this Court to allow for a wider margin of criticism of public officials,[16] the Constitutional Court struck down Article 269 (2) of the Criminal Code, which provided for convictions based simply on �offensive� or �denigrating� speech.[17] Notably, the Court upheld that portion of the Code providing for an offence of �incitement to hatred� � an offence that has been found to require more than simply a statement of offensive or alarming words, but also a disruption of peace.[18] Accordingly, under Hungarian law, restrictions on statements critical of the government or supportive of minority rights would not be considered proportionate or necessary.

4.7 Such restrictions would also be invalidated in Belgium and Germany, both jurisdictions that constitutionally protect the right to freedom of expression and apply the principle of proportionality to test restrictions on that right. Similarly, in Australia, where an implied constitutional right to discuss government and political matters[19] may be limited only when restrictions are �reasonably appropriate and adapted� � a test that has been described as little different from the test of proportionality � speech that is critical of government and advocates change without harming persons or property is protected. In South Africa, where proportionality also serves as a measure for restrictions, limits on free expression must be strictly assessed. Accordingly, a restriction such as a fifteen-day suspension, imposed on a member of the National Assembly for calling members of the ruling party �spies of the apartheid regime,� has been found unconstitutional.[20]

4.8 Even during the undemocratic apartheid regime in South Africa, courts were careful to guard the right to freedom of expression by applying rigorous standards to cases involving restrictions on expression. In a series of cases involving speech alleged to have fomented �hostility� between different groups, courts repeatedly found that even extreme statements, such as one calling for �a revolution, and a revolution means bloodshed,� did not rise to the level of a criminal offence.[21] Instead, the courts repeatedly stressed the importance of examining such statements in the context of the circumstances and found the speaker liable only if the statement clearly gave rise to an inference that the speaker had the intention to promote feelings of hostility. If the language used was reasonably capable of any other explanation, the inference of intent could not be drawn, and the speaker would not be liable. Indeed, as Curlewis JA noted as early as 1936 in a case involving language highly critical of the King, even language that appears �unnecessarily strong� may still not invoke liability, particularly considering that �if the appeal [against oppression] is intended to be effective, one can well imagine strong and extravagant language being used. . . .�[22]

4.9 In Canada, the guarantee to freedom of expression has been interpreted broadly to cover any words or activities that attempt to convey meaning. It covers all forms of political expression; threats of violence (though not actual violence); and even deliberate falsehoods. Restrictions on this and all other rights guaranteed under the Canadian Charter of Rights are upheld only if the restriction (1) pursues a purpose that is sufficiently important to warrant limiting the right, and (2) pursues that purpose by means that limit the right as little as reasonably possible. Significantly, purposes deemed to be sufficiently important to satisfy the first prong of this test have been described as values consonant with a �free and democratic society,� such as:

�respect for the inherent dignity of the human person, commitment to social justice and

equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.�[23]

Under these principles, a restriction broadly prohibiting recognition of, or autonomy for, a distinct cultural group would not pass muster under Canada�s test.

B. Freedom of Association

4.11 As almost all of the jurisdictions considered in these comments have explicitly recognised, the right to freedom of association is closely linked to the right to free expression.[24] Indeed, as this Court has itself stated with respect to Article 11:

�[N]otwithstanding its autonomous role and particular sphere of application, Article 11

must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11.

That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy.�[25]

In a similar vein, the South African Constitutional Court has recognised that freedom of expression is one of a �web of mutually supporting rights� closely related to freedom of association, freedom of religion, belief and opinion, the right to dignity, the right to vote and to stand for public office and the right to assembly:

�These rights taken together protect the rights of individuals not only individually to

form and express opinions, of whatever nature, but to establish associations and groups of like-minded people to foster and propagate such opinions. The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial. The corollary of the freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views.�[26]

4.12 It is because of this broad recognition of the importance of free expression and its corollary, free association, that the South African Court found invalid even a restriction on the rights of members of the armed forces to join a trade union.[27] Given this deference to associational rights, it is unlikely that broad restrictions imposed on a South African association based solely on political statements made by one of its members would be upheld. Indeed, it is important to note that even in the extreme circumstances where restrictions on speech are upheld in the jurisdictions reviewed, such restrictions are generally imposed on individual speakers rather than on colleagues or organisations associated with the speaker, unless that colleague or organisation adopts or endorses the extreme position. In the United States, for example, the right to association derives from the First Amendment and specifically �restricts the ability of the State to impose liability on an individual solely because of his association with another.�[28] Thus, the fact that one person commits a crime � or makes statements directed to inciting violence and likely to cause such violence � would not provide a permissible basis for penalising that person�s colleagues or associates.

4.13 Notably, many jurisdictions do not have statutes contemplating the dissolution of political parties under any circumstances, much less for advocating a specific viewpoint such as support for minority rights. Indeed, in five of the countries reviewed, political parties representing distinct linguistic and/or cultural minorities are active in government:

� In Canada, where the right to free association is guaranteed by Section 2(d) of the Charter of Rights, the Bloc Qu�b�cois now constitutes the third largest party in the House of Commons and advocates at the federal level for a separation of Quebec from Canada.

� In Belgium, where Article 27 of the Constitution provides that �[l]es Belges ont le droit

de s�associer; ce droit ne peut �tre soumis � aucune mesure pr�ventive,� the entire constitutional structure of government is based on the protection of minority language groups. Accordingly, political parties representing and advocating on behalf of distinct linguistic groups are an accepted part of the democratic structure. For example, German-speaking regions, which include just a few thousand citizens and thus only a small percentage of the Belgian population, maintain their own government.

� In Spain, where Article 22 of the Constitution recognises the right of association, several political parties openly promote the independence of regions like Catalonia and Basque Country. No such political party may be restricted in their advocacy unless their actions clearly provoke violence or terrorist acts.

� In the United Kingdom, where, until the Human Rights Act 1998 took effect on

2 October 2000, the freedom to associate has been defined by the existence of relatively few legal limits, such freedom clearly allows for associations that promote the break up of the United Kingdom or advocate for greater rights for minority or ethnic groups. Indeed, political parties in Scotland (Scottish National Party), Wales (Plaid Cymru/Welsh National Party) and Northern Ireland (Sinn Fein and the Social and Democratic Labour Party) advocate independence for parts of the United Kingdom or integration with another country. Restrictions on these political parties and other associations are limited to those based on terrorist activities, the use or display of physical force or attempts to usurp the role of the police or armed forces, or criminal conspiracies.

� In Germany, where Articles 9 and 21 of the Basic Law provide for the right to free association and to form political parties (explored further below), a Danish minority in the north of the country has been active in the local Land legislature.

4.14 Laws providing for the dissolution of political parties in certain prescribed circumstances are in force in Germany and Hungary. In Hungary, however, the relevant statute has never been invoked to dissolve a political party, and its implementation, in any event, would have to comport with the constitutional norms relating to freedom of expression as laid out by the Hungarian Constitutional Court. Accordingly, while the statute provides that a party may be dissolved if its purpose is to commit crimes, if it infringes on others� rights and liberties, or if it attempts to acquire power through the use of force or in an exclusive manner, none of these bases would be constitutionally permissible if the state attempted to apply them to the dissolution of a political party simply because a member of that party issued �offensive� or disagreeable statements advocating minority rights. [29]

4.15 In Germany, Article 21 of the Basic Law allows for both the formation and dissolution of political parties. Although the dissolution provision is broadly worded, it has been invoked on only two occasions, both over forty years ago. In both instances, the political parties involved � the SRP, which openly sympathised with the former Nazi regime and the KDP, the Communist Party of Germany � raised uniquely sensitive issues for the German government at the time of the dissolution proceedings in 1952 and 1956, respectively. While the Federal Constitutional Court found in both cases that the parties had sought, in the words of Article 21, �to impair or abolish the free democratic basic order,� the Court carefully defined this term. It held that the phrase refers to an order based on the rule of law, on freedom and equality, and on the self-determination of the German people based on majority rule. Moreover, the Court noted the important contribution of certain fundamental rights to this democratic order, including the multi-party system and the right to form and exercise an opposition in accordance with the constitution.[30] Subsequently, the Court also clarified in the KDP case that in order for a party to be dissolved constitutionally, it must not only expressly reject the principles of a free democratic basic order, but must also �actively and aggressively� seek to impair the functioning of this order with the ultimate goal of overthrowing it.[31] In short, the German Basic Law provides only for the dissolution of parties which stand in utter contradiction to the core values of democracy and aggressively engage in efforts to overthrow that democracy. A party advocating for lawful change and the recognition of minority rights would thus not be proscribed under German law.

4.16 Because the right of free elections to the legislature �enshrines a characteristic principle of democracy, Article 3 of Protocol 1 is accordingly of prime importance in the Convention system.�[32] This guarantee, which specifically requires a Contracting Party to hold elections �under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature,� invokes not only the principle of free expression for voters electing their representatives at the national level, but additionally �implies essentially . . . the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election.�[33] In this regard, a recent South African Constitutional Court judgment, upholding the right of prisoners to vote, speaks eloquently:

�Universal adult suffrage on a common voter�s roll is one of the foundational values of

our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement.�[34]

Because of this unmitigated commitment to the basic right of universal suffrage, efforts to curtail the right to vote in South Africa, whether directly by the removal of that right entirely, or indirectly, by refusing to give effect to individuals� votes by removing their representative from parliament, would likely be found by the Constitutional Court to contravene democratic principles and be considered unconstitutional. In other jurisdictions as well, the removal of elected representatives occurs rarely and is permitted only in specified circumstances. Even the dissolution of a political party in Hungary, for example, would not necessarily result in an individual, elected member of parliament losing his or her mandate to serve in the legislature.

4.17 Because of the fundamental nature of the right to vote and stand for election, and the importance of ensuring equality of treatment of all citizens in the exercise of their right to vote, we would respectfully urge the Court, should it find a violation of Article 10 and/or Article 11 with respect to the actions directed against the applicants, to set forth additionally and separately that the removal of elected representatives without a valid basis from a national legislature constitutes an unnecessary infringement on the rights of the applicants to stand for election and the rights of the voters to choose their representatives under Article 3, Protocol 1.[35]

5.1 As set forth above and in the attached statements, the nine democratic countries surveyed for these comments broadly protect the right to freedom of expression, as well as the rights to association and free elections. While restrictions are permitted, restrictions based on political statements � particularly when such statements are critical of the government � are only deemed necessary in narrow circumstances. Statements advocating for lawful change and recognition of minority rights, and in most jurisdictions even for a separate state, would be protected and would not provide a valid basis upon which to penalise an association or remove elected representatives from office. Instead, such an action would be deemed unnecessary and disproportionate under the law of the democratic countries surveyed here.

[1] Preamble, Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950 (�Convention�). See United Communist Party of Turkey and Others v. Turkey, Judgment of 30 Jan. 1998, Case No. 133/1996/752/951, para. 45; Mathieu-Mohin and Clerfayt v. Belgium, Judgment of 2 Mar. 1987, Series A, No. 113, para. 47; Lingens v. Austria, Judgment of 8 July 1986, Series A, No. 103, para. 41.

[2] United Communist Party of Turkey and Others v. Turkey, paras. 35-47; Lingens v. Austria, paras. 35-37.

[3] The government has asserted �national security,� �public order� and �territorial integrity� as the legitimate aims behind its dissolution of the Democracy Party and removal of the applicants� status as members of parliament.

[4] Sunday Times v. United Kingdom, Judgment of 26 April 1979, Series A, No. 30, para. 62 (internal quotes omitted).

[5] United Communist Party of Turkey and Others v. Turkey, supra note 1, para. 46. See also Incal v. Turkey, Judgment of 9 June 1998, Case No. 41/1997/825/1031, para. 46 (�[I]nterferences with the freedom of expression of a politician who is a member of an opposition party, like the applicant[s], call for the closest scrutiny on the Court�s part.�) (citation omitted); Socialist Party and Others v. Turkey, Judgment of 25 May 1998, Case No. 20/1997/804/1007, para. 50 (�[O]nly convincing and compelling reasons can justify restrictions on [a political] part[y�s] freedom of association.�)

[6] E.g., Marckx v. Belgium, Judgment of 13 June 1979, Series A, No. 31 and Dudgeon v. United Kingdom, Judgment of 23 Sept. 1981, Series A, No. 45 (noting the practice of other contracting states in assessing a restriction�s necessity).

[7] See infra para. 4.13.

[8] South African National Defence Union v. Minister of Defence & Ano, 1999 (4) SA 469 (CC); 1999 (6) BCLR 615 (CC), para. 7 (finding unconstitutional a prohibition on members of the army to join trade unions).

[9] Incal v. Turkey, supra note 5, para. 54; see also Ceylan v. Turkey, Judgment of 8 July 1999, App. No. 23556/94, para. 34; Ener v. Turkey, Judgment of 18 July 2000, App. No. 26680/95, para. 40.

[10] Incal v. Turkey, supra note 5, para. 46 (citation omitted); see also United Communist Party of Turkey and Others v. Turkey, supra note 1, paras. 25, 43, 44.

[11] Roth v. United States, 354 U.S. 476, 484 (1957).

[12] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

[13] STC 20/1990, para. 3�.

[14] STC 159/1986, para. 8�.

[15] See Bindman, G. �Incitement to Racial Hatred in the United Kingdom: Have We Got the Law We Need?� in Coliver, S., ed. Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (1992, Article 19 and Human Rights Centre, University of Essex), pp. 259-60.

[16] 36/1994 AB.

[17] 30/1992 AB.

[18] Budapest City Court Judgment, Spring 1996 (acquitting the leader of a neo-fascist party and his colleagues of incitement despite statements denying the Holocaust).

[19] Protected political speech has been described by Mason CJ and Toohey and Gaudron JJ in Theophanous v. The Herald & Weekly Times Ltd. with reference to Barendt�s broad definition that ��political speech� refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.� (1994) 182 CLR 104, 124 (quoting Barendt, Freedom of Speech (1985), p. 152).

[20] Speaker of the National Assembly v. Patricia De Lille and Ano, 1999 (4) SA 863 (SCA).

[21] R v. Nkatlo, 1950 (1) SA 26 (C).

[22] R v. Roux, 1936 AD 271, 283-84.

[23] R. v. Oakes [1986] 1 S.C.R. 103, 136 (emphasis added).

[24] The Australian Supreme Court as a whole has not yet had the occasion to affirmatively recognise an implied constitutional right to free association, although two justices have specifically recognised such a freedom and one has disavowed its existence. Kruger v. The Commonwealth (1997) 190 CLR 1.

[25] United Communist Party of Turkey and Others v. Turkey, supra note 1, paras. 42-43 (citations omitted).

[26] South African National Defence Union v. Minister of Defence & Ano, supra note 8, para. 8.

[27] Such a restriction may well be upheld under the Convention. See Rekv�nyi v. Hungary, Judgment of 20 May 1999, App. No. 25390/94.

[28] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918 (1982).

[29] See supra para. 4.6.

[30] BVerfGE 2, 1.

[31] BVerfGE 5, 85 (141).

[32] Mathieu-Mohin and Clerfayt v. Belgium, supra note 1, para. 47

[33] Id. at para. 54.

[34] August & Ano v. The Electoral Commission and Others, 1999 (3) SA 1 (CC), para. 17.

[35] This claim is particularly relevant to a case such as this, where the applicants� political parties have been repeatedly dissolved.

I. INTRODUCTION

IV. DISCUSSION

B. Freedom of Association