[The] case of Refah Partisi (Welfare Party) and dilemmas of the rights and freedoms under the ECHR system

Abstract

The study focuses on a case decided by the European Court of Human Rights while it tries to draw attention to one of the significant cases ever decided by the Convention Organs. The case of Refah Partisi (Welfare Party) is, therefore, analysed in many respects. Refah Party, a political party in Turkey, was founded in 1983, and came to power by forming a coalition government with a center right Party in 1997. In 1998, it was dissolved by the Turkish Constitutional Court on the grounds that it had become a centre of activities contrary to the principle of secularism. Apart from the size and importance of the Refah Party, the case presents no particular significance to Turkish pollical and legal system. Refah is not the first to have been dissolved by the Turkish Constitutional Court. Nor is it the first to have been dissolved on the basis of Party's anti secular aims discovered by the Constitutional Court. However, with regard to the European Court's judgment, the case of Refah is of high significance in many respects. The Court in Refah for the first time outlawed the political Islam. The Court also made it clear that it has adopted a conspiracy law approach to political parties. Thus, the case may be regarded as a departure from the traditional western democracy. The Court has declared political Islam as a real threat to democracy while weighing over the certain circumstances of the countries. At this point, the Court like the Turkish Constitutional Courts has found that the principle of secularism has a special position in Turkey due to the certain circumstances peculiar to Turkey, such as history and the ratio of Muslim population in the Country. This study aims to illuminate such issues as whether the rationale upon which the Court relied in Refah is right and reasonable. It determines that the Court is reasoning was relied on misleading information. It also concludes that the Court's reasoning in Refah is inconsistent with the fundamental] principles of democracy. On the other hand, Refah case has risen many questions with regard to the scope or freedom of expression. Although the focus of the case was on the freedom of association, there appeared dilemmas of rights and freedoms under the Convention system and freedom of expression has been curtailed to a considerable extent.