Condensed entry: Forced dissolution occurs when an association is involuntarily closed or terminated. Forced dissolution is only justified if basedon law which is necessary in a democratic society in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others. A political party whose leaders incite recourse to violence or the destruction of the democratic order may be forcibly dissolved.
Comprehensive entry: Article 22 of the ICCPR guarantees the right to freedom of association.[1] The right to association is not limited to mere formation of an association but lasts for its entire life.[2] As such, it not only protects the right to form associations (see *freely form and join in any association/organisation*), but also prohibits forced closure or termination of an association except in very limited circumstances. The reasons that may result in forced dissolution of an association must be prescribed by law, be necessary in a democratic society, in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others.[3]Forced dissolutionshould be an exceptional step and the reasons for it have to be clearly ‘relevant and sufficient’.[4] Strict scrutiny is ‘all the more necessary where an entire political party is dissolved’.[5] Forced dissolution of associations may only be effected as a final resort when ‘strictly proportional’ to the nature of the breaches and offences committed by the association.[6] Apart from bankruptcy and prolonged inactivity, the conduct of an association that may warrant its forced dissolution include incitement to violence and anti-democratic activities. If members of an association incite violence, leaders of the association have a duty to distance themselves from such statements.[7] However, with regard to the forced dissolution of a party calling for the autonomy of the Kurdish region of Turkey, the ECtHR held that the fact that ‘a political programme is considered incompatible with the current principles and structures of the … State does not make it incompatible with the rules of democracy. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself’.[8] Controversially the ECtHR has held that the dissolution of a party in Turkey which propagated the application of sharia law beyond the private sphere was legitimate:[9] It has not been disputed before the Court that in Turkey everyone can observe in his private life the requirements of his religion. On the other hand, Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession). The freedom to enter into contracts cannot encroach upon the State’s role as the neutral and impartial organiser of the exercise of religions, faiths and beliefs.
[1] ICESCR art 8 (trade union rights); art 15 CRC; art 11 ECHR; art 16 ACHR; art 19 ACHPR; and the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.
[2]United Communist Party of Turkey and Others v Turkey (ECtHR 1998) para 46.
[4]United Communist Party of Turkey and Others v Turkey application 19392/92 (ECtHR 1998) para 47, Belyatsky et al v Belarusapplication 1296/2004 (2007); Tebieti Mühafize Cemiyyeti and Israfilov v Azerbaijanapplication 37083/03 (ECtHR 2009).
[5]United Communist Party of Turkey and Others v Turkey para 46.
[6]Belyatsky et al v Belarus; Tebieti Mühafize Cemiyyeti and Israfilov v Azerbaijan;//Interights and Others v Mauritania// communication 242/2001 (ACHPR 2004) para 82.
[7]Refah Partisi (The Welfare Party) and Others v Turkey para 131.
[8]Socialist Party and Others v. Turkey (ECtHR 1998) Para. 47
[9]Refah Partisi (The Welfare Party) and Others v Turkey para 128.
Forced dissolution occurs when an association is involuntarily closed or terminated. Forced dissolution is only justified if based on law which is necessary in a democratic society in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others. A political party whose leaders incite recourse to violence or the destruction of the democratic order may be forcibly dissolved.
Comprehensive entry:
Article 22 of the ICCPR guarantees the right to freedom of association.[1] The right to association is not limited to mere formation of an association but lasts for its entire life.[2] As such, it not only protects the right to form associations (see *freely form and join in any association/organisation*), but also prohibits forced closure or termination of an association except in very limited circumstances.
The reasons that may result in forced dissolution of an association must be prescribed by law, be necessary in a democratic society, in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others.[3]Forced dissolutionshould be an exceptional step and the reasons for it have to be clearly ‘relevant and sufficient’.[4] Strict scrutiny is ‘all the more necessary where an entire political party is dissolved’.[5] Forced dissolution of associations may only be effected as a final resort when ‘strictly proportional’ to the nature of the breaches and offences committed by the association.[6]
Apart from bankruptcy and prolonged inactivity, the conduct of an association that may warrant its forced dissolution include incitement to violence and anti-democratic activities. If members of an association incite violence, leaders of the association have a duty to distance themselves from such statements.[7] However, with regard to the forced dissolution of a party calling for the autonomy of the Kurdish region of Turkey, the ECtHR held that the fact that ‘a political programme is considered incompatible with the current principles and structures of the … State does not make it incompatible with the rules of democracy. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself’.[8]
Controversially the ECtHR has held that the dissolution of a party in Turkey which propagated the application of sharia law beyond the private sphere was legitimate:[9]
It has not been disputed before the Court that in Turkey everyone can observe in his private life the requirements of his religion. On the other hand, Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession). The freedom to enter into contracts cannot encroach upon the State’s role as the neutral and impartial organiser of the exercise of religions, faiths and beliefs.
[1] ICESCR art 8 (trade union rights); art 15 CRC; art 11 ECHR; art 16 ACHR; art 19 ACHPR; and the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.
[2] United Communist Party of Turkey and Others v Turkey (ECtHR 1998) para 46.
[3] Article 22(2) ICCPR.
[4] United Communist Party of Turkey and Others v Turkey application 19392/92 (ECtHR 1998) para 47, Belyatsky et al v Belarus application 1296/2004 (2007); Tebieti Mühafize Cemiyyeti and Israfilov v Azerbaijan application 37083/03 (ECtHR 2009).
[5] United Communist Party of Turkey and Others v Turkey para 46.
[6] Belyatsky et al v Belarus; Tebieti Mühafize Cemiyyeti and Israfilov v Azerbaijan; //Interights and Others v Mauritania// communication 242/2001 (ACHPR 2004) para 82.
[7] Refah Partisi (The Welfare Party) and Others v Turkey para 131.
[8] Socialist Party and Others v. Turkey (ECtHR 1998) Para. 47
[9] Refah Partisi (The Welfare Party) and Others v Turkey para 128.