Theory and Practice of Human Rights Law 

(Moot trial) 
Selected Case-law of the European Court on Human Rights

In Stankov and the United Macedonian Orgsanition Ilinden v. Bulgaria case, the Court stated :  

In a democratic society based on the rule of law political ideas which challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means.

***************************

In United Communist Party of Turkey (TBKP) v. Turkey, the Court declared: 

One of the principal characteristics of democracy is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when those problems are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a group solely because it seeks to debate in public the situation of part of the State’s population and to find, according to democratic rules, solutions capable of satisfying everyone concerned. 

**********************************

In Socialist Party and Others v. Turkey case, the Court underlined: 

… the fact that (such) a political programme is considered incompatible with the current principles and structures of the Turkish 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. 

**************************

In Rufi Osmani v. the Former Yugoslav Republic of Macedonia,  the Strasbourg Court noted: 

…while freedom of peaceful assembly, and freedom of expression, is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interference with the freedom of peaceful assembly and freedom of expression of an elected representative calls for the closest scrutiny on the part of the Court.

The Court continues: 

…special attention had to be given to the content of the applicant’s speech and its context as well as to the assembly which the applicant convened, with a view to determining whether they can be considered as inciting to violence. 

****************************

In the Refah Partisi (the Welfare Party) and Others v. Turkey case, the Court declared that any conduct which failed to respect the principle of secularism cannot be accepted as being part of the freedom to manifest one’s religion. In particular, the Court noted : 

	…the introduction of shariah is difficult to reconcile with the fundamental principles of democracy, mainly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. 

The Court considered that a political party may promote a change in the law or the legal and constitutional structures of the state on two conditions: 
… firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention's protection against penalties imposed on those grounds.

The Court continues:
… The possibility cannot be excluded that a political party, in pleading the rights of assembly, expression and thoughts, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy. In view of the very clear link between the Convention and democracy, no-one must be authorised to rely on the Convention's provisions in order to weaken or destroy the ideals and values of a democratic society. 

… Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole. 

*********************

In the Gündüz v. Turkey case, the Court noted that merely defending the shariah, without calling for the use of violence to establish it, cannot be regarded as hate speech, and that in these cases consideration must be given to the real opportunities an association or a group has to seize political power and set up a regime based on shariah.