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The European Convention on Human Rights : restricting rights in a democratic society with special reference to Turkish political party cases

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posted on 15.12.2014, 10:44 by Murat Tumay
The main concern of this thesis is the dissolution of political parties by the Turkish Constitution Court and the response of the European Court of Human Rights. This study will analyse and compare the approaches to restrictions of fundamental rights under the European Convention on Human Rights by both national courts and the Strasbourg Court. The protection of human rights has to be balanced by accommodations in favour of the reasonable needs of the State to perform its duties for the common good. Ensuring that State does not take improper advantage of such accommodations requires a measure of international control. National restrictions, which are necessary in a democratic society, are allowed subject to the supervision of the Court of Human Rights. Political parties are a form of association essential to the proper functioning of democracy, and restrictions on freedom of association should be construed strictly. Only the most compelling reasons can justify dissolution of political parties. This thesis aims to identify the democratic values set out in the case law of the Strasbourg organs, and to explore the cases concerning the dissolution of political parties in the light of those values. The approach of the national courts will be contrasted with that of the Strasbourg court in those cases, which have resulted in applications under the European Convention. The thesis draws a distinction between an ideology-based paradigm and a rights-based paradigm in such cases. The national court has adopted an ideology-based approach, whereas the Strasbourg court has adopted a rights-based approach. However, in the Refah Partisi case, the Strasbourg court appears to have adopted an ideology-based approach. This was unfortunate as this resulted in a decision that is in conflict with the approach it had adopted in earlier cases those previous cases had contributed significantly to the development of democratic values in Turkey.


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University of Leicester

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