ECHR judgment of July 10, 2018 in the case of the Zehra Foundation and Others v. Turkey (Complaint N 51595/07).
In 2007, the applicant fund was assisted in the preparation of the application. Subsequently, the application was communicated to Turkey.
The case was successfully considered a application about the termination for seven years of the foundation’s activity, which pursued the goal of creating a state based on Sharia law, and the non-return of certain assets of the foundation. The case was a violation of Article 11 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The activity of the applicant fund (hereinafter referred to as the fund) was interrupted in the period between its dissolution by the courts in 2006 and its restoration in 2013 on the basis of the law. Accordingly, the fund could not dispose of its property to finance its activities. When resuming the activities, the foundation did not return all its real estate. It was clear from the fund’s publications that its ultimate goals were the creation of a state system based on Sharia law and the creation of secondary and higher educational institutions to achieve this goal. These goals went beyond the scope of the fund’s activities and the goals defined in its charter.
QUESTIONS OF LAW
Regarding compliance with Article 11 of the Convention. The disbandment that led to the cessation of the foundation’s activities for more than seven years, as well as the non-return of certain assets of the foundation, interfere with the exercise by the applicants, the founding members of the foundation, and the foundation of their right to freedom of association. The disputed measures were prescribed by law and pursued the legitimate goals of protecting the rights and freedoms of others, preventing unrest and maintaining public order.
The foundation was disbanded on the basis of materials published in its official gazette. Separate materials pointed to the concept and goals of the foundation on its future activities, and not to the personal opinion of the authors of the relevant materials. The ultimate goals of the foundation were the creation of a state system based on Sharia law, and the opening of educational institutions to achieve this goal. They testified to the clear contradiction to the principles of secularism and pluralistic democracy.
Such a foundation in a State party to the Convention can hardly be regarded as an association consistent with the democratic ideals underlying the Convention.
The judiciary has fulfilled its obligation to ensure that the national educational program is organized "objectively, critically and on the basis of pluralism, allowing students to develop critical thinking regarding, in particular, religion in a relaxed atmosphere, free from all proselytism."
The disbanding of the fund was justified, whereas none of its founding members was convicted of unlawful acts, since in Turkey, since 1991, the expression of ideas and opinions contrary to the principle of secularism is no longer a criminal offense. This is in line with the case law of the European Court, according to which, in a pluralistic democracy, even ideas deviating from a democratic regime can be expressed in open discussion to the public, as long as they do not lead to incitement to hatred or call for violence. However, Contracting States are not deprived of the opportunity to take measures to ensure that the foundation does not use its property for the benefit of educational policies that are contrary to the values of a pluralistic democracy and violate the rights and freedoms guaranteed by the Convention.
As soon as the activities of the foundation, including materials published by him and distributed on his behalf, demonstrated that the foundation was pursuing a goal different from the goals stated in its charter, the authorities could legitimately intervene in his activities to put an end to this inconsistency.
Therefore, domestic courts, which conducted a comprehensive assessment of the circumstances of the case, did not go beyond their margin of appreciation when they decided that there was an urgent public need to prevent the foundation from implementing its hidden intent in order to preserve the specific nature of education in a pluralistic democratic society and to prevent unrest and protect the rights of others.
The contested measure was not disproportionate to the goals pursued, since the foundation was to remain inactive only for a limited period of time, some of its property was returned to it, and the small property that remained at the disposal of public services was transferred to these services based on the results of selection based on objective criteria provided by law.
Thus, interventions in the rights of the foundation met urgent social needs, were proportionate to the goals pursued and could be considered necessary in a democratic society.
The case did not violate the requirements of Article 11 of the Convention (adopted unanimously).