CASE OF REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY

No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The first applicant , PERSON ( ORG – “ LOC ) , was a political party founded on DATE . It was represented by its chairman , Mr PERSON , who is also the second applicant . He was born in DATE and lives in GPE . An engineer by training , he is a politician . At the material time he was a member of ORG and PERCENT ’s chairman .

The third applicant , Mr PERSON , who was born in DATE , lives in GPE . He is a politician and a lawyer . At the material time he was a member of ORG and a vice - chairman of ORG . The fourth applicant , Mr PERSON , who was born in DATE , lives in GPE . He is a politician and a lawyer . At the material time he was a member of ORG and a vice - chairman of ORG .

Refah took part in a number of general and local elections . In the local elections in DATE PERSON obtained PERCENT of the votes and its candidates were elected mayor in a number of towns , including CARDINAL large cities . In the general election of DATE it obtained PERCENT of the votes . The CARDINAL MPs elected as a result took part DATE in the work of ORG and its various committees , including ORG , which proposed amendments to LAW that became law on DATE . During the debate in ORG on the new sixth paragraph of LAW ( see paragraph CARDINAL below ) the chairman of ORG explained when he presented the draft it had prepared that ORG would not restrict itself to noting the unconstitutional nature of the individual acts of the members of a party but would then be obliged to declare that the party concerned had become a centre of anticonstitutional activities on account of those acts . CARDINAL MP , representing the parliamentary group of ORG , emphasised the need to change the relevant provisions of PERSON no . PERSON on the regulation of political parties to take account of the new sixth paragraph of LAW .

Ultimately , PERSON obtained PERCENT of the votes in the general election of DATE and PERCENT of the votes in the local elections of DATE .

The results of the DATE general election made LOC largest political party in GPE with a total of CARDINAL seats in ORG ( which had CARDINAL members at the material time ) . On DATE Refah came to power by forming a coalition government with the centre - right ORG ( PERSON ) , led by PERSON . According to an opinion poll carried out in DATE , if a general election had been held at that time , PERSON would have obtained PERCENT of the votes . The same poll predicted that ORG might obtain PERCENT of the votes in the general election to be held DATE .

On DATE ORG at ORG applied to ORG to have PERSON dissolved on the grounds that it was a “ centre ” ( mihrak ) of activities contrary to the principles of secularism . In support of his application , he referred to the following acts and remarks by certain leaders and members of GPE .

– Whenever they spoke in public PERSON ’s chairman and other leaders advocated the wearing of NORP headscarves in ORG schools and buildings occupied by public administrative authorities , whereas ORG had already ruled that this infringed the principle of secularism enshrined in LAW .

– At a meeting on constitutional reform PERSON ’s chairman , Mr ORG , had made proposals tending towards the abolition of secularism in GPE . He had suggested that the adherents of each religious movement should obey their own rules rather than the rules of NORP law .

– On DATE Mr ORG had asked ORG representatives in ORG to consider whether the change in the social order which the party sought would be “ peaceful or violent ” and would be achieved “ harmoniously or by bloodshed ” .

– At a seminar held in DATE in GPE , Mr ORG had called on NORP to join GPE , saying that only his party could establish the supremacy of the Koran through a holy war ( jihad ) and that NORP should therefore make donations to GPE rather than distributing alms to third parties .

– During DATE Mr NORP had received the heads of the NORP movements at the residence reserved for the Prime Minister , thus assuring them of his support .

– Several members of GPE , including some in high office , had made speeches calling for the secular political system to be replaced by a theocratic system . These persons had also advocated the elimination of the opponents of this policy , if necessary by force . PERSON , by refusing to open disciplinary proceedings against the members concerned and even , in certain cases , facilitating the dissemination of their speeches , had tacitly approved the views expressed .

– On DATE a Refah MP , Mr PERSON , had said in front of journalists in the corridors of the parliament building that blood would flow if an attempt was made to close the “ PERSON - Hatip ” theological colleges , that the situation might become worse than in GPE , that he personally wanted blood to flow so that democracy could be installed in the country , that he would strike back against anyone who attacked him and that he would fight to the end for the introduction of NORP law ( sharia ) .

– The Minister of ORG , Mr PERSON ( a Refah MP and vice - chairman of the party ) , had expressed his support for the mayor of NORP by visiting him in the prison where he had been detained pending trial after being charged with publicly vindicating international NORP terrorist groups .

ORG further observed that Refah had not opened any disciplinary proceedings against those responsible for the above - mentioned acts and remarks .

On DATE ORG submitted new evidence against FAC to ORG .

On DATE ORG representatives filed their defence submissions , in which they relied on international human - rights protection instruments , including the Convention , pointing out that these instruments formed part of NORP written law . They further referred to the case - law of the Commission , which had expressed the opinion that LAW had been breached in the cases concerning ORG of GPE and ORG , and to the case - law of ORG on the restrictions on freedom of expression and freedom of association authorised by the second paragraphs of ORG CARDINAL of the Convention . They contended that the dissolution of GPE was not prompted by a pressing social need and was not necessary in a NORP society . Nor , according to ORG representatives , was their party ’s dissolution justified by application of the “ clear and present danger ” test laid down by ORG .

Refah ’s representatives further rejected ORG argument that the party was a “ centre ” of activities which undermined the secular nature of the Republic . They submitted that PERSON was not caught by the criteria laid down in the PERSON on the regulation of political parties for determining whether a political party constituted a “ centre of anticonstitutional activities ” . They observed , inter alia , that the prosecuting authorities had not issued any warning to PERSON ( which had CARDINAL members ) that might have enabled it to expel any of its members whose acts had contravened the provisions of LAW .

Refah ’s representatives also set out their point of view on the concept of secularism . They asserted that the principle of secularism implied respect for all beliefs and that LOC had shown such respect in its political activity .

NORP The ORG representatives alleged that in accusing Mr ORG of supporting the use of force to achieve political ends and of infringing the principle of secularism the prosecuting authorities had merely cited extracts from his speeches which they had distorted and taken out of context . Moreover , these remarks were covered by PERSON ORG parliamentary immunity . They further noted that the dinner he had given to senior officials of ORG and former members of the theology faculty had been presented by ORG as a reception organised for the leaders of NORP fundamentalist movements , which had in any event been legally proscribed since DATE .

With regard to the remarks of the other NORP leaders and members criticised by ORG , ORG representatives observed that these did not constitute any criminal offence .

They asserted that none of the MPs whose speeches had been referred to by ORG was authorised to represent PERSON or held office within the party and claimed that the prosecuting authorities had not set in motion the procedure laid down in the PERSON on the regulation of political parties so as to give LOC the opportunity , if the need arose , to decide whether or not the persons concerned should continue to be members of the party ; the first time Refah ’s leadership had been informed of the remarks criticised in the case had been when they read ORG submissions . The CARDINAL MPs under attack had been expelled from the party , which had thus done what was necessary to avoid becoming a “ centre ” of illegal activities within the meaning of the PERSON on the regulation of political parties .

On DATE ORG filed his observations on the merits of the case with ORG . He submitted that according to the LAW and the case - law of the NORP courts on constitutional - law issues nothing obliged GPE to tolerate the existence of political parties that sought the destruction of democracy and the rule of law . He contended that ORG , by describing itself as an army engaged in a jihad and by openly declaring its intention to replace the Republic ’s statute law by sharia , had demonstrated that its objectives were incompatible with the requirements of a democratic society . PERSON ’s aim to establish a plurality of legal systems ( in which each group would be governed by a legal system in conformity with its members’ religious beliefs ) constituted the first stage in the process designed to substitute a theocratic regime for the Republic .

In their observations on the merits of the case , ORG representatives again argued that the dissolution of their party could not be grounded on any of the restrictions permitted by the second paragraph of LAW . They went on to say that LAW was not applicable in the case , as Refah had nothing in common with political parties which sought to install a totalitarian regime . Furthermore , the plurality of legal systems which their party proposed was actually intended to promote the freedom to enter into contracts and the freedom to choose which court should have jurisdiction .

On DATE ORG submitted his observations orally . On CARDINAL and DATE Mr PERSON submitted his oral observations on behalf of Refah .

In a judgment of CARDINAL DATE , which it delivered following proceedings on preliminary issues it had instituted of its own motion as the court dealing with the merits , ORG ruled that , regard being had to LAW , the second paragraph of LAW on the regulation of political parties was unconstitutional and declared it null and void . LAW , taken together with section ORG ) of the same PERSON , provided that for a political party to be considered a “ centre ” of activities contrary to the fundamental principles of the Republic its members had to have been convicted of criminal offences . According to ORG , that legal restriction did not cover all cases where the principles of the Republic had been flouted . It pointed out , among other observations , that after the repeal of LAW activities contrary to the principle of secularism no longer attracted criminal penalties .

On DATE ORG dissolved Refah on the ground that it had become a “ centre of activities contrary to the principle of secularism ” . It based its decision on sections FAC ) and CARDINAL ) of PERSON no . FAC on the regulation of political parties . It also noted the transfer of Refah ’s assets to the ORG as an automatic consequence of dissolution , in accordance with LAW no . CARDINAL .

NORP In its judgment ORG first dismissed the preliminary objections raised by GPE . In that connection it held that the parliamentary immunity of the MPs whose remarks had been mentioned in ORG submissions of CARDINAL DATE had nothing to do with consideration of an application for the dissolution of a political party and forfeiture of political rights by its members , but was a question of the criminal responsibility of the MPs concerned , which was not a matter of constitutional law .

With regard to the merits , ORG held that while political parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions . In particular , activities by them incompatible with the rule of law could not be tolerated . ORG referred to the provisions of the LAW which imposed respect for secularism on the various organs of political power . It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life . ORG observed that secularism was CARDINAL of the indispensable conditions of democracy . In GPE the principle of secularism was safeguarded by the LAW , on account of the country ’s historical experience and the specific features of ORG . The rules of sharia were incompatible with the democratic regime . The principle of secularism prevented the ORG from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law . Intervention by the ORG to preserve the secular nature of the political regime had to be considered necessary in a NORP society .

ORG held that the following evidence proved that PERSON had become a centre of activities contrary to the principle of secularism ( see paragraphs CARDINAL - CARDINAL below ) :

Refah ’s chairman , Mr PERSON , had encouraged the wearing of NORP headscarves in public and educational establishments . On DATE , at the party ’s Fourth Ordinary General Meeting , he had said :

“ ... when we were in government , for DATE , the notorious LAW was never applied against any child in the country . In our time there was never any question of hostility to the wearing of headscarves ... ”

In his speech of DATE before the general election he had said :

“ ... [ university ] chancellors are going to retreat before the headscarf when PERSON comes to power . ”

But manifesting one ’s religion in such a manner amounted to exerting pressure on persons who did not follow that practice and created discrimination on the ground of religion or beliefs . That finding was supported by various rulings of ORG and ORG and by the case - law of ORG on applications nos . CARDINAL and CARDINAL concerning the wearing of headscarves at universities .

The plurality of legal systems proposed by Mr Necmettin Erbakan was nothing to do with the freedom to enter into contracts as LOC claimed , but was an attempt to establish a distinction between citizens on the ground of their religion and beliefs and was aimed at the installation of a theocratic regime . On DATE Mr Erbakan had made the following speech to ORG :

“ ... ‘ you shall live in a manner compatible with your beliefs’ . We want despotism to be abolished . There must be several legal systems . The citizen must be able to choose for himself which legal system is most appropriate for him , within a framework of general principles . Moreover , that has always been the case throughout our history . In our history there have been various religious movements . Everyone lived according to the legal rules of his own organisation , and so everyone lived in peace . Why , then , should I be obliged to live according to another ’s rules ? ... The right to choose one ’s own legal system is an integral part of the freedom of religion . ”

In addition , Mr ORG had spoken as follows on DATE at a FAC party conference :

“ ... we shall guarantee all human rights . We shall guarantee to everyone the right to live as he sees fit and to choose the legal system he prefers . We shall free the administration from centralism . The ORG which you have installed is a repressive ORG , not a ORG at the people ’s service . You do not allow the freedom to choose one ’s code of law . When we are in power a NORP will be able to get married before the mufti , if he wishes , and a NORP will be able to marry in church , if he prefers . ”

The plurality of legal systems advocated by Mr Necmettin Erbakan in his speeches had its origin in the practice introduced in DATE of ORG by the “ GPE ” , which had given the NORP and polytheist communities the right to live according to their own legal systems , not according to NORP law . On the basis of ORG some NORP thinkers and politicians had proposed a model of peaceful social co - existence under which each religious group would be free to choose its own legal system . Since the foundation of ORG in DATE ( dissolved by a judgment of CARDINAL DATE ) Mr PERSON had been seeking to replace the single legal system with a plurality of legal systems .

The Constitutional Court further observed that in a plurality of legal systems , as proposed by ORG , society would have to be divided into several religious movements ; each individual would have to choose the movement to which he wished to belong and would thus be subjected to the rights and obligations prescribed by the religion of his community . ORG pointed out that such a system , whose origins lay in the history of ORG as a political regime , was inimical to the consciousness of allegiance to a nation having legislative and judicial unity . It would naturally impair judicial unity since each religious movement would set up its own courts and the ordinary courts would be obliged to apply the law according to the religion of those appearing before them , thus obliging the latter to reveal their beliefs . It would also undermine legislative and judicial unity , the preconditions for secularism and the consciousness of nationhood , given that each religious movement would be empowered to decree what legal rules should be applicable to its members .

In addition , Mr ORG had made a speech on DATE to the FAC group in ORG in which he had advocated setting up a theocratic regime , if necessary through force :

“ The second important point is this : PERSON will come to power and a just [ social ] order [ adil CARDINAL ] will be established . The question we must ask ourselves is whether this change will be violent or peaceful ; whether it will entail bloodshed . I would have preferred not to have to use those terms , but in the face of all that , in the face of terrorism , and so that everyone can see the true situation clearly , I feel obliged to do so . DATE GPE must take a decision . ORG will establish a just order , that is certain . [ But ] will the transition be peaceful or violent ; will it be achieved harmoniously or by bloodshed ? The CARDINAL [ citizens ] must make up their minds on that point . ”

The reception given by Mr Necmettin Erbakan at the Prime Minister ’s residence to the leaders of various religious movements , who had attended in vestments denoting their religious allegiance , unambiguously evidenced ORG ’s chairman ’s support for these religious groups vis - à - vis public opinion .

In a public speech in DATE Mr PERSON , MP for the province of PERSON , had issued a clear call to wage a jihad and had argued for the introduction of NORP law , making the following declaration :

“ We shall certainly call to account those who turn their backs on the precepts of the Koran and those who deprive Allah ’s Messenger of his jurisdiction in their country . ”

In another public speech , also in DATE , Mr PERSON had said :

“ In the hereafter you will be summoned with the leaders you have chosen in this life . ... Have you considered to what extent the Koran is applied in this country ? I have done the sums . PERCENT [ of the rules ] in the Koran are applied in this country . CARDINAL verses have been quietly forgotten ... You found a ORG , you build a hostel , you pay for a child ’s education , you teach , you preach . ... None of that is part of the chapter on jihad but of that on the amel - i salih [ peacetime activities ] . Jihad is the name given to the quest for power for the advent of justice , for the propagation of justice and for glorification of ORG ’s Word . Allah did not see that task as an abstract political concept ; he made it a requirement for warriors [ cahudi ] . What does that mean ? That jihad must be waged by an army ! The commander is identified ... The condition to be met before prayer [ namaz ] is the NORP of power . Allah says that , before FAC , it is the path of power which must be NORP ... It is not erecting vaulted ceilings in the places of prayer which will lead you to LOC . For Allah does not ask whether you have built up vaulted ceilings in this country . He will not ask that . He will ask you if you have reached a sufficient level ... DATE , if NORP have MONEY , they must give CARDINAL to the Koranic schools , to train our children , girls and boys , and CARDINAL must be given to the political establishments which open the road to power . Allah asked all His prophets to fight for power . You can not name a single member of a religious movement who does not fight for power . I tell you , if I had as many heads as I have hairs on my head , even if each of those heads were to be torn from my shoulders for following the way of the Koran , I would not abandon my cause ... The question Allah will ask you is this : ‘ Why , in the time of the blasphemous regime , did you not work for the construction of an NORP ORG and his friends want to bring ORG to this country in the form of a political party . The prosecutor understood that clearly . If we could understand that as he did , the problem would be solved . Even PERSON the NORP has realised that in this country the symbol of NORP is PERSON . He who incites the NORP community [ cemaat ] to take up arms before political power is in NORP hands is a fool , or a traitor doing the bidding of others . For none of the prophets authorised war before the capture of State power . ... NORP are intelligent . They do not reveal how they intend to beat their enemy . The general staff gives orders and the soldiers obey . If the general staff reveals its plan , it is up to the commanders of the NORP community to make a new plan . Our mission is not to talk , but to apply the war plan , as soldiers in the army ... ”

Criminal proceedings had been brought against Mr PERSON . Although his antipathy to secularism was well - known , PERSON had adopted him as a candidate in local - government elections . After he had been elected mayor of LAW had made sure that he was elected as an MP in ORG .

In a public speech on DATE and a television interview first recorded in DATE and rebroadcast on DATE , Mr PERSON , PERSON for the province of GPE , had encouraged discrimination between believers and non - believers and had predicted that if the supporters of applying sharia came to power they would annihilate nonbelievers :

“ Our homeland belongs to us , but not the regime , dear brothers . The regime and Kemalism belong to others . ... GPE will be destroyed , gentlemen . People say : Could GPE become like GPE ? Just as , in GPE , we got PERCENT [ of the votes ] , here too we will reach PERCENT , we will not remain on PERCENT . Do not waste your energy on us – I am speaking here to you , to those ... of the imperialist LOC , the colonising LOC , the wild LOC , to those who , in order to unite with the rest of the world , become the enemies of honour and modesty , those who lower themselves to the level of dogs , of puppies , in order to imitate the LOC , to the extent of putting dogs between the legs of NORP women – it is to you I speak when I say : ‘ Do not waste your energy on us , you will die at the hands of the people of PERSON ”

“ ... the army says : ‘ We can accept it if you ’re a supporter of the ORG , but a supporter of sharia , never.’ Well you wo n’t solve the problem with that attitude . If you want the solution , it ’s sharia . ”

ORG had ensured that PERSON was elected as an MP and its local branches had played videotapes of this speech and the interview .

Refah ’s vice - chairman , Mr PERSON , in a speech he made in DATE while on pilgrimage in GPE which was shown by a NORP television station , had said that he advocated installing a regime based on sharia :

“ In countries which have a parliamentary regime , if the people are not sufficiently aware , if they do not work hard enough to bring about the advent of ‘ ORG nizami’ [ a just order or PERSON ’s order ] , CARDINAL calamities lie ahead . The first calamity is the renegades they will have to face . They will be tyrannised by them and will eventually disappear . The second calamity is that they will not be able to give a satisfactory account of themselves to Allah , as they will not have worked to establish ‘ ORG nizami’ . And so they will likewise perish . Venerable brothers , our duty is to do what is necessary to introduce the system of justice , taking these subtleties into consideration . The political apparatus which seeks to establish ‘ ORG in GPE is ORG . ”

On DATE the mayor of GPE , Mr PERSON , had urged the population to renounce secularism and asked his audience to “ keep their hatred alive ” until the regime was changed , in the following terms :

“ The dominant forces say ‘ either you live as we do or we will sow discord and corruption among you’ . So even ORG dare not reveal their world - outlook inside their ORG . TIME I too attended a ceremony in my official capacity . When you see me dressed up like this in all this finery , do n’t think it ’s because I ’m a supporter of secularism . In this period when our beliefs are not respected , and indeed are blasphemed against , I have had to attend these ceremonies in spite of myself . The Prime Minister , other Ministers and MPs have certain obligations . But you have no obligations . This system must change . We have waited , we will wait a little longer . Let us see what the future has in store for us . And let NORP keep alive the resentment , rancour and hatred they feel in their hearts . ”

Mr PERSON had been convicted of inciting the people to hatred on the ground of religion .

On DATE Mr PERSON , PERSON for the province of ORG , had spoken in ORG in favour of the establishment of a regime based on sharia and approving acts of violence like those which were taking place in GPE :

“ If you attempt to close down the ‘ ORG theological colleges while ORG is in government , blood will flow . It would be worse than in GPE . I too would like blood to flow . That ’s how democracy will be installed . And it will be a beautiful thing . The army has not been able to deal with QUANTITY members of the ORG . How would it see off CARDINAL NORP ? If they piss into the wind they ’ll get their faces wet . If anyone attacks me I will strike back . I will fight to the end to introduce sharia . ”

Mr PERSON had been expelled from the party DATE after the application for dissolution had been lodged . His exclusion had probably only been an attempt to evade the penalty in question .

Refah ’s vice - chairman , the Minister of ORG , Mr PERSON , had visited a person detained pending trial for activities contrary to the principle of secularism , thus publicly lending him his support as a Minister .

On the basis of the evidence adduced on DATE by ORG , ORG held that the following further evidence confirmed that Refah was a centre of activities contrary to the principle of secularism :

– In a public speech on DATE Mr PERSON had emphasised the importance of television as an instrument of propaganda in the holy war being waged in order to establish NORP order :

“ ... A ORG without television is not a ORG . If DATE , with your leadership , you wished to create a ORG , if you wanted to set up a television station , you would not even be able to broadcast for CARDINAL . Do you believe it is as easy as that to create a ORG ? That ’s what I told them DATE . I remember it now . Because DATE people who have beliefs , an audience and a certain vision of the world , have a television station of their own , thanks be to God . It is a great event .

Conscience , the fact that the television [ channel ] has the same conscience in all its programmes , and that the whole is harmonious , is very important . A cause can not be fought for without [ the support of ] television . Besides , DATE we can say that television plays the role of artillery or an air force in the jihad , that is the war for domination of the people ... it would be unthinkable to send a soldier to occupy a hill before those forces had shelled or bombed it . That is why the jihad of DATE can not be waged without television . So , for something so vital , sacrifices must be made . What difference does it make if we sacrifice money ? Death is close to all of us . When everything is dark , after death , if you want something to show you the way , that something is the money you give DATE , with conviction , for FAC . It was to remind you of that that I shared my memories with you .

... That is why , from now on , with that conviction , we will truly make every sacrifice , until it hurts . DATE those who contribute , with conviction , to the supremacy of PERSON [ Allah ] be happy . DATE bless you all , and may He grant PERSON even more success . Greetings . ”

– By a decree of CARDINAL DATE the cabinet ( in which the NORP members formed a majority ) had reorganised TIME in public establishments to make allowances for fasting during DATE . ORG had annulled this decree on the ground that it undermined the principle of secularism .

The Constitutional Court observed that it had taken into consideration international human - rights protection instruments , including the Convention . It also referred to the restrictions authorised by the second paragraph of LAW . It pointed out in that context that PERSON ’s leaders and members were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia . ORG observed :

“ Democracy is the antithesis of sharia . [ The ] principle [ of secularism ] , which is a sign of civic responsibility , was the impetus which enabled GPE to move on from Ummah [ ümmet – the NORP religious community ] to the nation . With adherence to the principle of secularism , values based on reason and science replaced dogmatic values . ... Persons of different beliefs , desiring to live together , were encouraged to do so by the ORG ’s egalitarian attitude towards them . ... Secularism accelerated civilisation by preventing religion from replacing scientific thought in the ORG ’s activities . It creates a vast environment of civic responsibility and freedom . The philosophy of modernisation of GPE is based on a humanist ideal , namely living in a more human way . Under a secular regime religion , which is a specific social institution , can have no authority over the constitution and governance of the ORG . ... Conferring on the ORG the right to supervise and oversee religious matters can not be regarded as interference contrary to the requirements of democratic society . ... Secularism , which is also the instrument of the transition to democracy , is the philosophical essence of life in GPE . Within a secular ORG religious feelings simply can not be associated with politics , public affairs and legislative provisions . Those are not matters to which religious requirements and thought apply , only scientific data , with consideration for the needs of individuals and societies . ”

ORG held that where a political party pursued activities aimed at bringing the democratic order to an end and used its freedom of expression to issue calls to action to achieve that aim , the LAW and supranational human - rights protection rules authorised its dissolution .

The Constitutional Court observed that the public statements of ORG ’s leaders , namely those of Mr PERSON , Mr PERSON and Mr PERSON , had directly engaged ORG responsibility with regard to the constitutionality of its activities . It further observed that the public statements made by MPs Mr PERSON , Mr PERSON and Mr PERSON , and by the mayor of GPE , Mr PERSON , had likewise engaged the party ’s responsibility since it had not reacted to them in any way or sought to distance itself from them , or at least not before the commencement of the dissolution proceedings .

As an additional penalty , ORG decided to strip PERSON , PERSON , PERSON , PERSON , PERSON and PERSON of their MP status , in accordance with LAW . It found that these persons , by their words and deeds , had caused ORG dissolution . ORG also banned them for DATE from becoming founding members , ordinary members , leaders or auditors of any other political party , pursuant to LAW .

Judges PERSON and PERSON expressed dissenting opinions stating , inter alia , that in their view the dissolution of PERSON was not compatible either with the provisions of the LAW or with the caselaw of ORG on the dissolution of political parties . They observed that political parties which did not support the use of violence should be able to take part in political life and that in a pluralist system there should be room for debate about ideas thought to be disturbing or even shocking .

This judgment was published in ORG on DATE .

The relevant provisions of the LAW read as follows :

“ GPE is a democratic , secular and social ORG based on the rule of law , respectful of human rights in a spirit of social peace , national solidarity and justice , adhering to the nationalism of PERSON and resting on the fundamental principles set out in the Preamble . ”

“ No amendment may be made or proposed to the provisions of LAW providing that the ORG shall be a republic , the provisions of LAW concerning the characteristics of the LOC or the provisions of LAW . ”

“ Sovereignty resides unconditionally and unreservedly in the nation . ... Sovereign power shall not under any circumstances be delegated to an individual , a group or a social class . ... ”

“ All individuals shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical beliefs , religion , membership of a religious sect or other similar grounds . ”

“ None of the rights and freedoms referred to in the LAW shall be exercised with a view to undermining the territorial integrity of the ORG and the unity of the nation , jeopardising the existence of ORG , abolishing fundamental rights and freedoms , placing the control of the ORG in the hands of a single individual or group , ensuring the domination of CARDINAL social class over other social classes , introducing discrimination on the grounds of language , race , religion or membership of a religious organisation , or establishing by any other means a ORG political system based on such concepts and opinions . ”

“ No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal interest or influence thereby . ”

“ The constitutions , rule books and activities of political parties shall not be incompatible with the independence of the ORG , the integrity of ORG territory and of the nation , human rights , the principles of equality and the rule of law , national sovereignty or the principles of a democratic , secular republic . No political party may be founded with the aim of advocating and establishing the domination of one social class or group , or a dictatorship in any form whatsoever . ... ”

“ ... The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by ORG at ORG . ”

“ ... A political party may not be dissolved on account of activities contrary to the provisions of LAW unless ORG has held that the political party concerned constitutes a centre of such activities . ”

This provision of the LAW was added on DATE .

“ ... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members , leaders or auditors of another political party for DATE from the date on which the reasoned decision to dissolve the party is published in ORG ... ”

“ Forfeiture of the status of member

Where ORG has validated the resignation of members of ORG , the loss of their status as members shall be decided by ORG in plenary session .

A convicted member of ORG shall not forfeit the status of member until the court which convicted him has notified ORG of the final judgment .

A member of ORG who continues to hold an office or carry on an activity incompatible with the status of member , within the meaning of LAW , shall forfeit that status after a secret ballot of ORG held in the light of the relevant committee ’s report showing that the member concerned holds or carries on the office or activity in question .

Where ORG notes that a member of ORG , without valid authorisation or excuse , has failed , for a total of DATE in DATE , to take part in the work of the ORG , that member shall forfeit the status of member where by majority vote ORG so decides .

The term of office of a member of ORG whose words and deeds have , according to ORG judgment , led to the dissolution of his party , shall end on DATE when that judgment is published in ORG . The Presidency of ORG shall enforce that part of the judgment and inform ORG accordingly . ”

The relevant provisions of Law no . PERSON read as follows :

“ Political parties

... shall not aim or strive to or incite third parties to

– jeopardise the existence of ORG , abolish fundamental rights and freedoms , introduce discrimination on grounds of language , race , colour , religion or membership of a religious sect , or establish , by any means , a system of government based on any such notion or concept .

“ The constitution , programme and activities of political parties shall not contravene the LAW or this PERSON . ”

“ The Constitutional Court shall dissolve a political party

( b ) where its general meeting , central office or executive committee ... takes a decision , issues a circular or makes a statement ... contrary to the provisions of LAW of this PERSON [ This chapter ( from section CARDINAL to section CARDINAL ) , which concerns restrictions on the activities of political parties , provides , inter alia , that such activities may not be conducted to the detriment of the democratic constitutional order ( including the sovereignty of the people and free elections ) , the nature of the nation ORG ( including national independence , national unity and the principle of equality ) , and the secular nature of the ORG ( including observance of the reforms carried out by PERSON , the prohibition on exploiting religious feelings and the prohibition on religious demonstrations organised by political parties ) ] , or where the chairman , vice - chairman or general secretary makes any written or oral statement contrary to those provisions .

( d ) Where acts contrary to the provisions of LAW have been committed by organs , authorities or councils other than those mentioned in sub - paragraph ( b ) , ORG shall , within DATE of the act concerned , require the party in writing to disband those organs and/or authorities and/or councils . State Counsel shall order the permanent exclusion from the party of those members who have been convicted for committing acts or making statements which contravene the provisions of Part CARDINAL .

State counsel shall institute proceedings for the dissolution of any political party which fails to comply with the instructions in his letter within DATE of its service . If , within DATE of service of ORG application , the organs , authorities or councils concerned have been disbanded by the party , and the member or members in question have been permanently excluded , the dissolution proceedings shall lapse . If not , the ORG shall consider the case on the basis of the file and shall adjudicate after hearing , if necessary , the oral submissions of ORG , the representatives of the political party and all those capable of providing information about the case ... ”

“ Where it is found that a political party has become a centre of activities contrary to the provisions of sections CARDINAL ... of the present PERSON , the party shall be dissolved by ORG . ”

“ All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the ORG . ”

Paragraph CARDINAL of section CARDINAL , which ORG declared unconstitutional on DATE , prescribed the use of the procedure laid down in section ORG ) for determination of the question whether a political party had become a centre of anti - constitutional activities .

This provision was worded as follows :

“ It shall be an offence , punishable by DATE imprisonment , to establish , found , organise , regulate , direct or administer associations with the intention of adapting the fundamental legal , social , economic or political bases of the ORG , even in part , to religious beliefs .

It shall be an offence , punishable by DATE imprisonment , to be a member of an association of that type or to incite another to become a member .

It shall be an offence , punishable by DATE imprisonment , to spread propaganda in any form or to attempt to acquire influence by exploiting religion , religious feelings or objects regarded as sacred by religion in a manner contrary to the principle of secularism and with the intention of adapting the fundamental legal , social , economic or political bases of the ORG , even in part , to religious beliefs or of serving political interests .

It shall be an offence , punishable by DATE imprisonment , to spread propaganda in any form or to attempt to acquire influence , with the aim of serving one ’s personal interests or obtaining advantages , by exploiting religion , religious feelings , objects regarded as sacred by religion or religious books .

Where the acts mentioned above are committed on the premises of the public administrative authorities , municipal councils , publicly owned undertakings whose capital , or part of whose capital , belongs to the ORG , trade unions , workers’ organisations , schools , or institutions of higher education , or by civil servants , technicians , doorkeepers or members of such establishments , the penalty shall be increased by a third .

Where the acts mentioned in the third and fourth paragraphs above are committed by means of publications , the penalty shall be increased by CARDINAL . ”


Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr M. İriz and PERSON , PERSON and PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .

NORP The facts of the case , as submitted by the parties , may be summarised as follows .

According to the applicant ’s version of the events , on DATE , at TIME , the applicant was arrested by CARDINAL plainclothes policemen and CARDINAL uniformed police officer on a street in the GPE district of GPE , GPE , on suspicion of having participated in an illegal demonstration . He was put in a commercial taxi and taken to FAC . There , the applicant was punched , kicked and beaten with truncheons by officers , who broke his nose , which started bleeding . The officers took him to LOC . The doctors applied a bandage to his nose . He was then taken to ORG and had a nose x - ray . On DATE , at TIME , he was handed over to police officers from the anti - terrorism branch of ORG . The applicant was subjected to further beatings at the anti - terrorism branch and was asked to become a police informer .

According to the ORG , on DATE , the applicant took part in an illegal demonstration and was chanting slogans in favour of the ORG ( ORG ) . When the security forces arrived at the scene of the demonstration to disperse the crowd , the applicant attempted to escape and fell on the ground . Thereafter , he was surrounded by a group of people living in the neighbourhood and beaten . The police officers rescued him and put him in a taxi and then took him to the LOC police station . He was immediately taken to ORG Nuri Burat State Hospital for medical examination and treatment before placing him in custody . According to the medical report issued by a doctor , at TIME , the applicant bore a number of injuries . The doctor noted the presence of scratches , oedema and lesions on the nose , an ecchymosis measuring CARDINAL on the side of the left eye , an ecchymosis inside his lower lip as well as haematoma measuring CARDINAL on the face .

DATE the applicant was taken to ORG for further treatment . The medical report , issued at TIME , stated that the applicant bore lesions and ecchymoses on his lower lip , nose and left knee .

On DATE , in his statements to the anti - terrorism police , the applicant stated that he had been beaten by the local people and had been rescued by the police officers .

On DATE the applicant was taken to a branch of ORG in GPE for medical examination . The medical report prepared by a forensic doctor stated that the ecchymoses , swelling and lesions observed on the applicant ’s body as well as the broken nose were not life threatening but would prevent him to carry out his regular work for DATE . This medical report was signed by the applicant and also contained his hand written statement which read :

“ The bruises , swellings and scratches on my body as well as the broken bone in my nose had been caused by the assault of a CARDINAL people at the exit of the local bazaar . ”

On DATE , the applicant was brought before ORG , where he denied the charges against him . He was released DATE .

On DATE the applicant filed CARDINAL separate complaints with the PERSON and ORG against the police officers who had allegedly ill - treated him in custody at FAC and at the anti - terrorism branch , respectively . He also claimed that his statements dated DATE had been obtained under duress and that he had been forced to sign those statements without reading . ORG then sent the applicant to ORG for medical examination .

The preliminary medical report issued by ORG on DATE indicated the presence of chest pain and an ecchymosis on the left leg , an ecchymosis of QUANTITY under his left eye , an ecchymosis of CARDINAL cm under his right eye , an ecchymosis inside his lower lip as well as an oedema . Given the applicant ’s allegation that his nose could have been broken , the doctor recommended an x - ray examination .

On DATE the ORG prosecutor took statements from the applicant in relation to his allegations of ill - treatment . The applicant claimed that following his arrest he had been beaten up by the police officers and that his nose had been broken . He asked ORG to initiate criminal proceedings against the police officers .

On DATE the applicant was referred for a further medical examination by ORG . On DATE ORG issued a definitive report on his medical condition , which made reference to the findings of a report dated DATE by ORG . In the latter , it was stated that the applicant had an ecchymosis of QUANTITY under his left eye , estimated to be DATE , an ecchymosis of QUANTITY under his right eye , an ecchymosis of ORG inside his lower lip as well as an oedema , estimated to be CARDINAL or DATE , and pain in the nose . His injuries were not regarded as life threatening but were classified as sufficient to render him unfit for DATE .

On CARDINAL DATE the ORG public prosecutor filed an indictment with ORG , charging QUANTITY police officers from FAC with inflicting ill - treatment on the applicant , under LAW .

On CARDINAL DATE ORG commenced the trial and scheduled the first hearing for DATE .

During the hearing of DATE , ORG heard statements from the accused police officers and the applicant as the complainant . All defendants denied the allegations . The applicant identified a police officer , ORG , as being one of the officers who had arrested him and had beaten him at FAC . DATE , the public prosecutor submitted to the court that the offence in question fell within the scope of PERSON no . DATE ( the PERSON on the Prosecution of Civil Servants and Public Officials ) . Accordingly , he requested that the case file be sent to the LOC Governor for leave to prosecute the police officers under that law . The court complied with this request , stopped the trial and sent the case file to ORG . GPE then appointed an investigator to conduct an investigation into the applicant ’s allegations .

On DATE the investigator also heard Mr ORG , the taxi driver who took the applicant to the GPE police station . The latter stated that he had parked his car in the area and had been watching the applicant being beaten up by the local people . CARDINAL police officers arrived at scene and had rescued him from the assault of the crowd . They then put the applicant in his car and had asked him to drive to the police station . He submitted that the applicant ’s face had been covered with blood when he had been put in his car .

On DATE the investigator took statements from CARDINAL police officers who were on duty that day at the aforementioned police stations . The accused police officers claimed that , contrary to the applicant ’s allegations , they had rescued him from the angry crowd and had brought him to the police station .

On DATE , relying on the investigation report prepared by the investigator , the District Governor decided not to permit the prosecution of the officers . This decision stated that the police officers , who had been patrolling after an illegal demonstration in the GPE district , had seen some local people beating the applicant . The officers had put the applicant into a taxi and had taken him to the police station , and TIME they had handed him over to the anti - terrorism branch . LOC concluded that , apart from the applicant ’s allegations , there was no evidence to prosecute the accused .

The applicant challenged this decision before ORG .

On DATE ORG upheld the Governor ’s decision . It noted that the taxi driver that day had testified that the applicant ’s face had been covered in blood when the police officers had put him into his vehicle . Moreover , the applicant , in his statement to the anti - terrorism police , had admitted that he had been beaten by some locals who had caught him as he was running away .

On DATE the ORG issued a decision of nonprosecution concerning the applicant ’s complaint against the police officers from the anti - terrorism branch . He noted that in his statement of CARDINAL DATE to the anti - terrorism police , the applicant had maintained that he had been rescued by the officers from local people who had been beating him . On DATE he had been examined by ORG at ORG . The applicant had written in the medical report of DATE that the injuries on his body and the fracture to his nose had been inflicted by some local people , and had added his signature .

The applicant appealed against this decision before ORG , which on DATE upheld the decision .

A full description of the domestic law and practice at the relevant time may be found in GPE and Others v. GPE ( nos . PERSON and CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINALIV ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant lodged a claim against the “ ORG ” company with ORG ) . He sought the annulment of resolutions passed by the general meeting of shareholders .

The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG ( Sąd Najwyższy ) .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Rīga . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

NORP The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant was hit by a car while he was riding his bicycle . He was taken to hospital , where he was diagnosed with contusions of the head and jaw . He was released on DATE .

On DATE ORG of ORG ( PERSON pilsētas Galvenās PERSON nodaļa ) ( hereinafter “ the traffic police ” ) decided not to initiate criminal proceedings against the driver of the car . It was established that a passenger , to whom the driver was giving a lift , unexpectedly opened the door of the car , and the applicant hit the door . The identity of the passenger was not established .

The applicant appealed against this decision to ORG office ( PERSON autotransporta prokuratūra ) , alleging that the driver knew the passenger and thus could identify him . The applicant also complained that he had sustained health problems in the accident .

On DATE a prosecutor attached to ORG office quashed the earlier decision and returned the case for additional investigation . Another decision not to institute criminal proceedings was adopted on DATE , but this too was later quashed . Various forensic medical and technical expert assessments were carried out throughout the investigation .

On DATE a prosecutor of ORG office informed the applicant that , according to the provisions of LAW , he could not have access to the decisions regarding the expert assessments .

On DATE the traffic police informed the applicant that the passenger had been identified .

On DATE the traffic police adopted a decision not to institute criminal proceedings and informed the applicant about it . The decision described in detail the circumstances of the accident and referred to the outcomes of the forensic medical and technical assessments . It concluded that the passenger had violated section CARDINAL ( CARDINAL ) of LAW ( see Relevant domestic law below ) , and that his wrongful act was the cause of the traffic accident . It also referred to the fact that the applicant had sustained minor injuries . The passenger was administratively fined in the amount of MONEY ( ORG ) .

After examining the applicant ’s appeals in which he contested the decision not to institute criminal proceedings on CARDINAL and DATE ORG upheld the earlier decision .

On DATE the applicant asked ORG to inform him where and when he could get acquainted with the materials in the file relating to the traffic accident . On DATE the applicant was informed that pursuant to section CARDINAL of LAW he has to submit an identical request to the investigating authority .

Pursuant to LAW , circumstances which have to be proved during pre - trial investigation include , inter alia , the amount of pecuniary loss suffered as a result of a crime .

Section CARDINAL stipulates that a civil claim may be submitted by persons who have suffered damage as a result of a crime . A civil claim may be brought against an accused or against a person who is vicariously liable for the acts of the accused . A person shall have the right to lodge a civil claim by way of civil proceedings if a claim has not been brought in criminal proceedings .

According to LAW , a person who has suffered damage as a result of a crime can be declared a civil party during pre - trial investigation .

Section CARDINAL stipulates that if a civil claim is left unexamined , a victim shall have the right to file the same claim by way of civil proceedings .

Section QUANTITY provides that a complaint about public ORG actions can be submitted to a hierarchically superior prosecutor .

According to section CARDINAL § CARDINAL , civil claims for compensation for pecuniary or non - pecuniary damage in criminal matters may be brought in accordance with the procedures prescribed by LAW .

Section CARDINAL stipulates that every wrongful act or failure to act per se shall give the person who has suffered damage thereby the right to claim compensation from the wrongdoer , in so far as he or she may be held liable for that act .

Other relevant provisions of LAW applicable at the material time , and other relevant matters are to be found in GPE v. GPE , no . CARDINAL , § § DATE , DATE .

According to section CARDINAL , pedestrians who have violated traffic rules and caused a traffic accident or minor injuries to a victim shall be fined in an amount from CARDINAL to QUANTITY ) .

According to section CARDINAL , a victim is a person to whom non - pecuniary , physical or material harm has been caused by an administrative violation . The victim has the right to , inter alia , be familiarised with all the materials in the proceedings , to submit requests and to appeal against the decision in administrative offence proceedings .


CASE OF PARTIDUL COMUNISTILOR (NEPECERISTI) AND UNGUREANU v. ROMANIA [Extracts]

Violation of Art. 11;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The first applicant is a political group which was refused registration as a political party in a judgment delivered by ORG on DATE . The second applicant is its chairman .

On DATE the ORG was founded at a national conference chaired by the second applicant , at which its constitution and political programme were adopted . The relevant parts of the constitution read as follows :

“ The ORG shall respect national sovereignty , the territorial integrity of the ORG , its legal order and the principles of democracy . None of its members shall defame the country and the nation , promote war and national , racial , class or religious hatred , encourage discrimination , territorial separatism or public violence , or engage in obscene and immoral activities .

The ORG is a free association of citizens who support political pluralism , uphold the principles of a democratic law - based ORG and strive to defend their own interests without denying those of others .

Aims

Article CARDINAL : The FAC shall express , represent and defend the political interests of the workers , without any distinction based on ethnic origin , sex , age , profession , belief or opinions . ' ORG ' means all those who earn their living by working , regardless of activity ...

With a view to ensuring a constant increase in workers ' living standards , the ORG shall act within the law , using any means lawfully available to all political parties , to gain political power in order to establish a humane and democratic society . ...

Article CARDINAL : The ORG is not the successor of the former ORG , with which it has no connection ; it represents the continuation of the resistance against ORG prior to DATE . Being founded by and composed of persons who were not members of the former ORG , the ORG emphasises that none of the qualities with which the former ORG was credited , or the criticisms that party aroused , should be attributed to it . ”

In its political programme , adopted on DATE , the ORG stated that its aims were to defend workers ' interests and to adhere to the essence of communist doctrine , based on the following fundamental principles : non - exploitation of certain persons by others or by the ORG ; social justice based on labour and proper qualitative competition ; and genuine democracy capable of securing the rights of the majority through free elections in which all political tendencies should be allowed to take part . It deplored what it called the antisocial and anti - working - class direction in which NORP society had moved since the overthrow of the previous regime in DATE , and the country 's transformation into a “ colony of the NORP and global neo - colonialist empires ” . The programme also contained the following political ideas :

“ The thesis underlying all policy and all doctrine is that the main advantage in politics is number . Those who are greatest in number are always right , irrespective of the way they think or act , and this is constantly being borne out , as , for example , on DATE when the anti - working - class , antisocial and antinational counter - revolution emerged victorious in several NORP countries .

The starting - point of all workers ' action has been the desire to change what is evil ; in practice , only what is good has changed , and almost completely . What do we mean by good ? ... During DATE of socio - economic practice in the territory of former GPE [ ] , socialism achieved goals for the masses – despite the errors , excesses , failings and abuses on the part of the former ORG bourgeoisie DATE which workers can not abandon or forget : the highest material and spiritual living standards in history ; the highest level of culture and civilisation in history ... ; the broadest and most extensive democratic legal framework ...

The ORG is a workers ' revolutionary political group that acts in an organised , conscious manner within the constitutional framework to eradicate the effects of the counter - revolution and to resume building the most humane and democratic society ever known – socialism . Regardless of its position in relation to the other political forces , [ that is , whether it is ] involved in the exercise of power and the administration of the ORG , the ORG will strive to attain such goals as may ensure the protection of the interests of the masses . ”

On DATE the second applicant , as the ORG 's representative , applied to ORG to enter it in the special register for political parties .

By a decision of DATE , the court refused the application as being ill - founded . The relevant passages of the reasoning of the decision read as follows :

“ In support of the application to register the party , a number of documents have been filed : a list of the party leaders , a list of its founder members , the constitution governing its organisation and functioning , its political programme , the lease for its headquarters , evidence of its financial resources and its constitutive instrument , namely TIME of the national conference held on DATE .

It appears from an examination of the documents in the file that the party 's constitution , in the chapter setting out its aims , ... states that it strives to gain political power in order to establish a humane and democratic society .

It therefore follows from its constitution and political programme that the party pursues the aim of establishing a humane ORG based on communist doctrine , which would imply that the constitutional and legal order in place since DATE is inhumane and not founded on genuine democracy .

The party is therefore in breach of LAW and CARDINAL of Legislative Decree no . MONEY , which provides that ' the aims of political parties must be based on respect for sovereignty , and that the means employed to achieve them must be in accordance with GPE 's constitutional and legal order ' . ”

On DATE the applicant appealed against that decision to ORG . In a judgment delivered on DATE , ORG dismissed the appeal on the ground that the assessment made in the decision had been correct . It finalised the text of the judgment on DATE and sent it to ORG to be archived . The second applicant states that he learned of the reasons for the judgment on DATE . The relevant paragraph of the reasoning reads as follows :

“ As to the final ground of appeal , concerning the merits of the case , the first - instance court was correct in considering the [ ORG 's ] constitution to be in breach of Legislative Decree no . CARDINAL/CARDINAL with regard to the country 's constitutional and legal order . Accordingly , the ORG dismisses the complaint as being ill - founded . ”

On DATE the Procurator - General of GPE informed the second applicant that he could see no reason to lodge an application ( recurs PERSON anulare ) to have the judgment of CARDINAL DATE quashed .

The second applicant lodged an application to set aside ( contestaţie în anulare ) , which ORG dismissed as being out of time on DATE .

After DATE the second applicant continued to express his political opinions in the newspaper Pentru socialism ( “ For NORP ” ) , of which he was the editor . On DATE he published an article entitled “ The NORP manifesto ” , which proclaimed his attachment to communist doctrine and criticised both the direction taken by ORG leaders before DATE and the policy pursued by successive governments since then . A large number of articles which the second applicant published in the newspaper in DATE and DATE contained slogans such as “ Workers of all countries , unite ! ” , “ The struggle continues ! ” and “ Long live socialism ! ” . In CARDINAL article he stated that , once in power , he would “ accept only those who accept[ed him ] ” .

In DATE the second applicant published a book , The anti - socialist , anti - working - class and antinational counter - revolution , in which he replied to CARDINAL questions from a journalist . In DATE he sent the ORG a copy of the book . In it he set out his political vision , outlining his commitment to communist doctrine and the working classes and describing PERSON as the greatest political philosopher of all humanity ; he also criticised both the authorities ' gradual betrayal , in his view , of communist ideals prior to DATE while praising former President PERSON – and the policy pursued by those in power after that date . He stated that , unlike the DATE communist regime , he was in favour of free , multi - party elections in which all the political forces could take part , except extremists and fascists , and voiced his support for a form of political competition based on respect for others and their political views . Among other things , he referred to the difficulties encountered since DATE in finding sufficient members to register the ORG and to the fact that the party was not well known in GPE , particularly among those for whom it was primarily intended , the peasants and workers .

Arguing that socialism had in the past been the subject of frequent “ attacks ” designed to destroy it , examples being the events in DATE in GPE , DATE in GPE and DATE and DATE in GPE , the second applicant stated in conclusion to his reply to a question from the journalist :

“ As long as there are still capitalist , imperialist and religious brutes in the world , whose main aim is to enslave others , the conditions for further internal and external activities against socialism will continue to exist , ... [ socialism ] being a fundamental idea and belief of the people ; remember the endless succession of attacks against the forces of good in fairy tales ... These attacks will not cease until the hideous and parasitic farmyard fowls , who commit crimes in all places and at all times , have been destroyed . ”

He stated in the book that the political system would in time become structured according to social class , that the ORG sought to represent the interests of the peasants and workers , and that a democratic parliament should reflect the country 's social structure , with the CARDINAL classes in question holding the vast majority of seats according to their share of the population .

Arguing that capitalism encouraged theft , the second applicant stated in the book that the masses , who despised wealth , would move away from the DATE political parties and , over DATE , towards the ORG .

With regard to property , he stated that it was for the people to decide whether privatisation was beneficial and that “ the rich ” could enjoy possessions they had obtained by lawful means . As to the restitution of property that had passed into ORG ownership during the communist regime , the second applicant considered that property confiscated for political reasons should be returned , although entire buildings and factories should not , because the nationalisation measures carried out after DATE had been acts of social justice .

At the material time the relevant provisions of Legislative Decree no . CARDINAL/CARDINAL on the registration and operation of political parties , which was published in ORG on DATE and repealed by LAW ( Law no . CARDINAL of DATE ) , read as follows :

“ Political parties may be freely founded in GPE , with the exception of fascist parties or those that spread ideas contrary to the constitutional and legal order . No other objection , whether based on race , religion , nationality , level of culture , sex or political views , may hinder the formation and operation of political parties ... ”

The aims of political parties and public - interest organisations shall be based on respect for the nation 's sovereignty , independence and territorial integrity and for democracy , in order to ensure the exercise of citizens ' rights and freedoms and to uphold the dignity of the NORP nation .

NORP The means employed to achieve the aims of political parties and public - interest organisations shall be in accordance with GPE 's constitutional and legal order . ”

“ Political parties shall be registered with ORG , which shall give a decision within DATE as to whether they have been lawfully constituted . An appeal against the decision of the ORG shall lie to ORG ... ”

Article CARDINAL § CARDINAL of the LAW provides :

“ Any political parties or organisations which , through their aims or activities , campaign against political pluralism , the principles of the rule of law , or the sovereignty , integrity or independence of GPE , shall be unconstitutional ... ”

Section CARDINAL of LAW ( Law no . CARDINAL/CARDINAL ) provides :

“ The following shall constitute a threat to the national security of GPE : ... ( h ) NORP the act of provoking , organising , carrying out or supporting , by whatever means , any totalitarian or extremist action inspired by communism , fascism , ... racism , anti - Semitism , revisionism or separatism that might jeopardise in any manner the unity and territorial integrity of GPE ; and the act of encouraging activities that might undermine the rule of law . ”

Section CARDINAL provides that , in cases referred to in LAW above , the public prosecutor may allow certain measures to be taken , such as phone - tapping , in order to obtain further information about the acts in question .

By section DATE , the formation and organisation of intelligence networks capable of undermining national security is an offence punishable by DATE imprisonment .


Violation of Art. 6-1+6-3-a;Violation of Art. 6-1+6-3-b;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr Pélissier was born in DATE and lives at ORG ; Mr PERSON was born in DATE and lives at GPE . Both are NORP nationals .

On DATE Mr PERSON and Mr PERSON formed a private limited company ( société à responsabilité limitée – Sàrl ) , NORP , whose object was the sale of pleasure craft . PERSON was appointed manager . In DATE NORP started to trade with a public company , ORG , whose object was boat - building . On DATE , NORP became ORG exclusive distributor for the ORG département coast .

On DATE both applicants became shareholders in PERSON , each holding CARDINAL of a total of CARDINAL shares ( the remaining CARDINAL belonged to the promoters , PERSON and PERSON ) .

On DATE PERSON , the applicants and Mr PERSON formed a private limited company , ORG du FAC , which was run by PERSON and PERSON . Its objects were the development of port infrastructures , harbour building and the sale and outfitting of boats . The share capital was held by PERSON GPE ( CARDINAL shares ) , the applicants ( CARDINAL shares ) , and PERSON ( ORG shares ) . On DATE ORG declared the company insolvent and ordered its judicial reorganisation .

By agreements made with ORG and another company , ORG , NORP was granted a licence allowing it to launch its boats on the sea front .

NORP In DATE relations between NORP and ORG started to deteriorate , the former owing the latter MONEY ( ORG ) . ORG then terminated the distribution agreement with ORG .

On CARDINAL DATE PERSON filed for insolvency . On DATE ORG held that the company was insolvent and ordered its judicial reorganisation .

On DATE ORG , finding that NORP had debts of QUANTITY , ordered its liquidation under the supervision of the court .

On DATE ORG lodged a complaint with the senior GPE investigating judge against a person or persons unknown for forgery of commercial documents and fraud by the falsification of a balance sheet and its use with a view to obtaining a rescheduling of debt which would never be honoured . On DATE the investigating judge sent instructions to ORG .

On DATE PERSON , the manager of NORP , was charged by the GPE investigating judge assigned to the case . On DATE an additional charge of negligent and fraudulent bankruptcy was brought against him . On CARDINAL DATE the investigating judge ’s instructions of DATE were carried out . The results revealed in particular the existence of a property holding company ( société civile immobilière ) , ORG , which had been set up by PERSON , Mr PERSON and PERSON wife , in order to acquire land for letting to PERSON .

On DATE Mr and PERSON lodged a complaint against PERSON and any other person having managerial responsibility for NORP , alleging misappropriation and , subsequently , fraud , in connection with the purchase and payment for a boat that was never delivered . On DATE a Mr PERSON lodged a complaint against PERSON for misappropriation and applied to be joined to the proceedings as a civil party claiming damages .

On DATE , after appearing before the investigating judge on DATE and CARDINAL DATE , the first applicant was charged with the offences set out in the complaint of DATE and with negligent and fraudulent bankruptcy and misappropriation .

On DATE the second applicant was charged with the same offences .

After PERSON no . CARDINAL of DATE , which reformed insolvency law , came into force , the public prosecutor , considering there to be “ strong evidence of criminal bankruptcy ” , lodged an additional application to have PERSON , PERSON and the applicants charged with that offence under the new law . In so doing , he relied on the provisions relating to criminal bankruptcy and aiding and abetting criminal bankruptcy .

NORP In a letter of CARDINAL DATE to the investigating judge , the lawyer acting for ORG argued that a charge of aiding and abetting criminal bankruptcy might lie against the applicants . On DATE ORG applied to be joined to the criminal bankruptcy proceedings as a civil party claiming damages .

On DATE the investigating judge preferred an additional charge of “ criminal bankruptcy ” against PERSON under sections CARDINAL and CARDINAL of the Law of DATE and ORG CARDINAL and CARDINAL of LAW . On DATE , DATE and DATE he preferred identical additional charges of “ criminal bankruptcy ” against the first applicant , the second applicant and PERSON respectively .

On DATE the investigating judge appointed CARDINAL accounting experts to audit the accounts .

On DATE they submitted their report to the investigating judge .

On DATE the investigating judge made an order transmitting the file to the public prosecutor for submissions ( ordonnance de soit - communiqué ) .

On DATE the investigating judge made a discharge order on the charges of forgery and using forged commercial documents , negligent and fraudulent bankruptcy and fraud ; ultimately , the only charge on which the applicants were committed to stand trial at ORG was that of criminal bankruptcy under LAW DATE . A discharge order was also made in the case of PERSON on the same charges and on the complaint lodged by PERSON and PERSON . He was committed to stand trial at ORG alone ( on certain charges for which he was the sole defendant ) , with PERSON ( on charges relating to the management of ORG ) , and with the applicants . In his order , the investigating judge cited Articles CARDINAL , CARDINAL and CARDINAL of the Criminal Code and sections CARDINAL and CARDINAL of the Law of DATE .

On DATE ORG sentenced PERSON to DATE imprisonment and a fine of ORG CARDINAL for fraudulent bankruptcy , concealment of assets and misappropriation . It acquitted PERSON of the charges against him . Of the civil parties , ORG application to be joined to the criminal bankruptcy proceedings was declared inadmissible and the court noted that PERSON and PERSON had withdrawn their application to be joined as civil parties ; the only person to be awarded compensation was PERSON ( in respect of the misappropriation by PERSON ) .

In the same judgment , ORG held with regard to the bankruptcy charges against the applicants :

“ It should firstly be noted that under the LAW only de jure or de facto managers , not , as suggested by the prosecution , members , can commit the offence .

Without it being necessary to consider whether the indictment is bad for failure to allege that the members [ the applicants ] were de facto managers , that being an essential element of the offence , it need only be observed that [ the applicants ] have not performed any acts of management , the de jure manager can not be regarded as having been a ‘ replaceable’ , compliant manager and it does not appear that he gave the other CARDINAL the right to sign on his behalf .

Thus , as they can not properly be described as de jure managers , the defendants PERSON and PERSON must be acquitted of these offences . ”

On DATE ORG appealed against that judgment . The public prosecutor and PERSON did likewise on DATE . On DATE ORG lodged additional submissions with the registry of ORG in which they proposed , in the alternative , recharacterising the acts the applicants were alleged to have committed as “ aiding and abetting ” criminal bankruptcy .

On DATE , after hearings on DATE and DATE , the Aix - en - ORG held that although the applicants could not be regarded as having been de facto managers of the company , they had nonetheless been informed of the serious difficulties it was in and had “ wilfully performed positive , material acts that had facilitated , aided or abetted PERSON in the concealment of assets to the detriment of NORP ” . It appears from the judgment that the applicants were regarded as appearing before ORG as “ defendants on criminal bankruptcy charges ” .

ORG consequently held that the applicants were guilty , not of the offences charged , but of the separate offence of aiding and abetting criminal bankruptcy through the concealment of assets . As regards the first applicant in particular , ORG found , inter alia , that he had furnished a false certificate in order to justify the payment of a sum of money in a suspect operation . It referred in its judgment to ORG main submissions requesting the ORG conviction for criminal bankruptcy , but made no mention of the additional submissions lodged on DATE concerning the accusation that they had aided and abetted criminal bankruptcy . There is a dispute as to whether that request was brought to the attention of the applicants ; however , it is common ground that it was mentioned , as an ancillary point , by the civil party at the hearing .

The Aix - en - Provence Court of Appeal sentenced each of the applicants to a suspended term of CARDINAL months’ imprisonment and to a fine of ORG CARDINAL . While upholding the conviction of PERSON and the partial discharge order made in his favour by ORG , it nonetheless increased the term of imprisonment to DATE , while suspending it , and the fine to ORG CARDINAL,CARDINAL . Lastly , ORG upheld PERSON acquittal , the award of damages to PERSON and the declaration that ORG application to be joined as a civil party was inadmissible .

On DATE and CARDINAL DATE the applicants appealed against that decision to ORG on points of law . In their pleadings they denied the offence and contended on the basis of LAW that ORG decision to convict them of an offence different from that charged had not been the subject of adversarial argument and had infringed the rights of the defence . In addition , the first applicant submitted that when referring to alleged irregularities on his account ORG had relied on allegations that had never been put to him and were incapable of showing that he had aided and abetted criminal bankruptcy .

In a judgment of CARDINAL DATE ORG dismissed the applicants’ appeal on the grounds that :

“ ... the reasons given in the impugned judgment enable ORG to satisfy itself that the court below sufficiently made out , within the limits of its jurisdiction , all the constitutive elements of the actus reus and mens rea

The relevant provisions of LAW provide :

“ The Criminal Court shall be seised of offences within its jurisdiction on the voluntary appearance of the parties , a summons accompanied by a statement of the charges , an immediate summary trial or , lastly , a committal by the investigating judge or judges . ”

“ The case is transferred to ORG to the extent determined in the notice of appeal ... ”

The relevant provisions of LAW in force at the material time were as follows :

“ Accessories to a serious crime ( crime ) or other major offence ( délit ) shall be liable to the same penalties as the principals , except where statute provides otherwise . ”

“ A person who , by gifts , promises , threats , abuse of authority or power , scheming or contrivance , has incited the commission of a serious crime ( crime ) or other major offence ( délit ) or given instructions for its commission ;

has procured weapons , implements or any other means of assisting in the commission of an offence knowing that such weapons , implements or other means were intended for that purpose ; or

has knowingly aided or abetted the principal or principals in acts preparatory to the commission of the offence or facilitating its commission or in carrying out the offence , shall be guilty of an offence as accessories , without prejudice to the penalties specially imposed by this LAW on persons conspiring to commit or inciting breaches of ORG security , even if the crime intended by those conspiring or inciting is not committed . ”

“ Persons found guilty of criminal bankruptcy shall be liable on conviction to between three months’ and DATE imprisonment and a fine of between FRF CARDINAL and ORG CARDINAL,CARDINAL or to either of those penalties .

In addition , an order may be made barring them from exercising the rights referred to in LAW . ”

“ Accessories to criminal bankruptcy shall be liable to the same penalties as those laid down in DATE , even if they are not merchants , craftsmen or farmers and do not directly or indirectly , de facto or de jure , manage a private - law legal entity having an economic activity . ”

The relevant provisions of this law read as follows :

“ The provisions of this LAW are applicable to :

( CARDINAL ) all traders and craftsmen ;

( CARDINAL ) anyone who has directly or indirectly , whether de jure or de facto , managed or liquidated a private - law entity having an economic activity ; and

( CARDINAL ) NORP individuals who are permanent representatives of entities managing entities as defined in subsection CARDINAL above . ”

“ Where judicial reorganisation proceedings are commenced , the persons referred to in section CARDINAL shall be guilty of criminal bankruptcy if they are found to have done any of the following :

( CARDINAL ) with the intention of avoiding or delaying the commencement of judicial reorganisation proceedings , made purchases with a view to resale at less than market value or used ruinous means to procure funding ;

( CARDINAL ) misappropriated or concealed all or part of the debtor ’s assets ;

( CARDINAL ) NORP fraudulently increased the debtor ’s liabilities ; or

( CARDINAL ) held fictitious accounts or caused accounting documents of the undertaking or entity to disappear or failed to keep any accounts . ”