Last Updated on June 17, 2019 by LawEuro
Information Note on the Court’s case-law 220
July 2018
Zehra Foundation and Others v. Turkey – 51595/07
Judgment 10.7.2018 [Section II]
Article 11
Article 11-1
Freedom of association
Seven-year interruption in the activities of a foundation striving to establish a State based on Sharia, and failure to return certain properties: no violation
Facts – The operation of the applicant foundation (hereafter “the foundation”) was interrupted from the time of its dissolution by the courts in 2006 until its re-registration in 2013 under new legislation. The foundation was thus unable to make use of its assets in order to fund its activities. Furthermore, when it was re-registered some of its properties were not returned to it. It was clear from the foundation’s publications that its ultimate objectives were the creation of a State system based on Sharia and the setting-up of secondary and tertiary education establishments furthering that aim. Those objectives went beyond its social purpose and the aims laid down in its statute.
Law – Article 11: The dissolution of the foundation, which had resulted in the cessation of its activities for over seven years, and the failure to return some of its properties, amounted to interference with the exercise by the foundation and the other applicants, who were founding members, of their right to freedom of association. The measures complained of were prescribed by law and pursued the legitimate aims of protecting the rights and freedoms of others, preventing disorder and ensuring public safety.
The foundation had been dissolved on the basis of articles published in its official newsletter. The articles selected had emphasised the foundation’s vision and goals comprising its view of its future activities, rather than the personal views of the authors. The ultimate goals were the establishment of a State system based on Sharia and the setting-up of educational establishments serving that cause, and demonstrated clear opposition to the principles of secularism and pluralist democracy.
Such a foundation in a State Party to the Convention could hardly be regarded as an association complying with the democratic ideal underlying the whole of the Convention.
The judicial authorities had fulfilled their obligation to ensure that the national curriculum was organised “in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism.”
The dissolution of the foundation had been justified despite the fact that none of its founding members were convicted by the criminal courts of illegal acts; since 1991, the expression of ideas and opinions contrary to the principle of secularism was no longer punishable as a criminal offence in Turkey. This was in line with the Court’s case-law according to which, in pluralist democracies, even ideas diverging from those of a democratic system could be expressed in public debate provided that they did not give rise to hate speech or incite others to violence. However, the Contracting States were not prevented from taking measures to ensure that a foundation did not deploy its assets to serve educational policy goals that were contrary to the values of pluralist democracy and in breach of the rights and freedoms guaranteed by the Convention.
Once it became clear from the foundation’s activities, including the articles it had published and disseminated in its name, that it was pursuing an aim other than those set forth in its statute, the authorities had been entitled to intervene in order to put an end to that divergence.
Accordingly, the national courts, which had examined the case in depth, had not overstepped their margin of appreciation in finding that there had been a pressing social need – in order to safeguard the specific nature of education in a pluralist democratic society and thus preserve public order and protect the rights of others – to prevent the foundation from achieving its covert aims.
Likewise, the measure complained of had not been disproportionate to the aims pursued given that the foundation’s activities had ceased for a limited period only, that most of its properties had been returned to it and that the few properties that remained at the disposal of the public services had been selected on the basis of an objective criterion prescribed by law.
Hence, the interference had corresponded to a pressing social need, had been proportionate to the aims pursued and could be regarded as necessary in a democratic society.
Conclusion: no violation (unanimously).
(See also Refah Partisi (The Welfare Party) and Others v. Turkey [GC], 41340/98 et al., 13 February 2003, Information Note 50 ; Kalifatstaat v. Germany (dec.), 13828/04, 11 December 2006, Information Note 92; and the Factsheet on Hate speech)
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