—Tolga Şirin, Associate Professor of Constitutional Law, Marmara University, Turkey.
Turkish politics involves a graveyard of political parties, which have been dissolved since the Republic’s early years. Unfortunately, the world record in this regard probably belongs to Turkey, where the courts have, so far, dissolved at least twenty-four political parties with communist, Islamist, or pro-Kurdish tendencies.
Some of these cases were brought to the European Court of Human Rights (from now on the ‘ECtHR’), who found a violation of freedom of association in all but one of them. Therefore, the legislature performed many legal and constitutional amendments between 2001-2010 to solve this issue. Nowadays, as communism is no longer a danger and an Islamist party is in power for a long time in Turkey, one could think that Turkey has no longer a problem on this matter. However, the last development regarding the opening of a new dissolution case against the Peoples’ Democratic Party (hereinafter ‘HDP’) showed that the sword of Damocles still hangs over essentially pro-Kurdish political parties’ heads.
In this brief blog post, I will try to remark the legal possibilities in the HDP case before the Turkish Constitutional Court (after this, the ‘TCC’) without focusing on the political background of the case.
The Irony of the AKP
Erdoğan’s ruling party AKP incorporates many historical contradictions. AKP’s antecedent parties became a victim of Turkey’s militant political party regime many times since they experienced many dissolution cases. Four parties from the Islamist party tradition were dissolved, and even AKP was subjected to a sanction in 2008 because they became a focus of anti-secular activities. Accordingly, AKP used to be known as a party with a position against the dissolution of political parties. Hence, it has supported or introduced reforms on dissolution conditions of political parties between 2001 and 2010.
Today, however, AKP seems to have changed its position after ascending to power, and its members have been trying to shut down one of their most powerful political rivals. However, they haven’t yet been successful and, ironically, it is the rules they have very much supported or introduced that are preventing them to achieve their aim.
So far, four legal difficulties are hindering the dissolution of HDP.
Firstly, under the article 69 of the Constitution, a political party can only be closed when it has become the ‘focus’ for the execution of unconstitutional activities. Therefore, it is not enough to determine that a party performs unconstitutional activities; it must also ‘become the focus’ of the unconstitutionality. The term ‘become the focus’ was strictly defined in the 2001 constitutional amendments, which the AKP also supported, as follows: ‘A political party shall be deemed to become the focus of such actions only when such actions are carried out intensively by the members of that party or the situation is shared implicitly or explicitly by the grand congress, general chairpersonship or the central decision-making or administrative organs of that party or by the group’s general meeting or group executive board at the Grand National Assembly of Turkey or when these activities are carried out in determination by the abovementioned party organs directly.’ Accordingly, the dissolution of political parties in Turkey cannot take place easily, especially if compared to the past.
On the other hand, AKP’s 2010 constitutional amendments made sanctions regarding quorum more difficult to be applied to political parties Under article 149 of the Constitution, any constitutional sanctions on a political party can be decided with two-thirds of the meeting members of the TCC. The total member number of the TCC is fifteen. Therefore, at least ten members must vote against the HDP to deliver a decision for dissolution. Nonetheless, it is very doubtful that this quorum will be achieved, even if we assume that all members appointed by Erdoğan will vote for dissolution. The total members appointed by Erdoğan are only seven, and one of them is known for his monograph and articles against the dissolution of political parties. The other five members appointed by Abdullah Gül, the former president of the Republic, are also known as relatively liberal and tend to follow the ECtHR’s judgments. Hence, even if the remaining three members, elected by the Parliament, vote for dissolution, the ratio seems still not to reach the requirement necessary for the dissolution of the HDP.
Moreover, there is another legal barrier to dissolve any political party in Turkey specified in the political parties’ code. The TCC annulled a provision in 2010 saying that ‘the decision to close a political party after a lawsuit has been filed by the authorized body of that party does not prevent executing the closure case filed in the Constitutional Court and the legal consequences that will arise in case of a decision to dissolve it.’ In other words, a case will no longer be heard if a political party decides to close itself and, under this event, no sanctions can be imposed on the relevant party. It is obvious that it becomes almost impossible to dissolve a political party after the annulment decision of the TCC. Already, it is known that HDP has formed a reserve party and, therefore, it is possible that they will close themselves and found a new party in the later stages of the case.
Last but not least, the Constitution used to predict that the members of a party whose acts or statements have caused the party to be dissolved permanently could not be a member in any other party for five years and their deputies to be canceled. The 2010 amendment removed the second of these results; namely, all members of the dissolved party in the Parliament will hold the title of independent parliamentarians. Therefore, the closure of a party no longer causes changes in the quorums of the deputies.
Consequently, the closure of the HDP will not easily take place. Even in this slight possibility, neither the parliamentary majority will change nor the HDP (with a different name) will be prevented from participating in the elections. The only possible legal outcome of the case would be HDP’s deprivation of state aid to political parties with 7% of the votes. And, politically, it should be noted that this case seems to have no other purpose than to satisfy Turkish nationalism and far-right-wing politicians.
Suggested Citation: Tolga Şirin, Legal Possibilities in the Dissolution Case against the Peoples’ Democratic Party in Turkey, Int’l J. Const. L. Blog, Sept. 2, 2021, at http://www.iconnectblog.com/2021/09/legal-possibilities-in-the-dissolution-case-against-the-peoples-democratic-party-in-turkey/
 These parties are as follows: Türkiye Sosyalist Emekçi ve Köylü Partisi , Çiftçi Köylü Partisi, Türkiye Sosyalist Partisi, İslam Demokrat Partisi, Milet Partisi, Vatan Partisi, Millî Nizam Partisi, Türkiye İşçi Partisi, Türkiye Emekçi Partisi, Huzur Partisi, Refah Partisi, Fazilet Partisi, Sosyalist Parti, Sosyalist Türkiye Partisi, Sosyalist Birlik Partisi, Demokrasi ve Değişim Partisi, Emek Partisi, Demokratik Kitle Partisi, Özgürlük ve Demokrasi Partisi, Halkın Emek Partisi, Demokrasi Partisi, Halkın Demokrasi Partisi, Demokratik Toplum Partisi.
 For the only exception, see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, ECHR 2003-II.
 For the AKP case (AYM, E. 2008/1, K. 2008/2, 30/07/2008) see https://www.resmigazete.gov.tr/eskiler/2008/10/20081024-10.htm
 For the 2001 amendments, see Levent Gönenç ‘The 2001 Amendments to the 1982 Constitution of Turkey’, 1(1) Ankara Law Review (2004) 89-109.
 For the background of the 2010 amendments, see Ersin Kalaycıoğlu, ‘Kulturkampf in Turkey: The Constitutional Referendum of 12 September 2010’, 17(1) South European Society and Politics (2012) 1-22.
 These members are Kadir Özkaya, Recai Akyel, Yusuf Şevki Hakyemez, Yıldız Seferinoğlu, Selahaddin Menteş, Basri Bağcı, İrfan Fidan. See Yusuf Şevki Hakyemez and Birol Akgün, ‘Limitations on the Freedom of Political Parties in Turkey and the Jurisdiction of the European Court of Human Rights’, 7(2) Mediterranean Politics (2002) 54-78.
 These members are Zühtü Arslan, Hasan Tahsin Gökcan, Engin Yıldırım, Muammer Topal, Emin Kuz.
 These members are Hicabi Dursun, Celal Mümtaz Akıncı, Rıdvan Güleç.