Browsing by Author "San, Coşkun"

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    Parti yasaklamada ve kapatmada demokratik toplum düzeni ölçütü
    (Fen Bilimleri Enstitüsü, 2000) Nal, Sabahattin; San, Coşkun; Siyaset Bilimi ve Kamu Yönetimi
    In this study, the political party prohibitions have been considered in the scope of "the order of democratic society". As a researching model; case study and comparative method have been used to determine and explain the issues. Also, by using teleological-progressive approache, the legal materials have been dealt with. The first part of this thesis, "the order of democratic society" concept has been taken into account. The measure of "the order of democratic society" is used in the 1982 Constitution as the limit of restrictions on the basic human rights. According to the Commission, this measure is identifiable and easy to use in practice. The Turkish Constitutional Court applies and uderstands this measure as "the standardised order of democratic society". According to the understanding of the Court the specifications of this measure are counted as: Equality, freedom, do not act against the essential content of the basic right, to save the basic rights, to save the permanence of the participation. About this measure there are two groups of thoughts in the Turkish doctrine. According to first group, this measure's use is not as easy to apply as said. Also is not easily identifiable as the measure of "essential content of the basic right". On the other hand, second group claims that the new measure is more identifiable and easier to apply, compare with the "essential content of the basic right" criteria. The Convention is applied by the Constitutional Court only as supporting law rather than directly applied one. In the doctrine mostly accepted idea is that the Convention is a part of national law to be applied directly as the superior one. This superiority of the Convention depends on the character of it. According to the Commission and the Court the specifications of the democratic society are counted as: freedom of expression, tolerance, rule of law, the saving the minorities' rights. The Convention accepts the militant-fighting democracy concept. Nobody or no any state can disapprove or destruct those rights by using them supplied in by the Convention. Accordingly, if any political party does aim to prohibit or destruct those rights guaranteed by the Convention, they can be prohibited. In the second part, accordingly with "the order of democratic society" determined foregoing part, the political party prohibition has been considered in the Turkish legal system. Firstly, the importance and realities of political parties for a political system have been studied. Secondly the party prohibition was dealt with accordingly with Turkish legislations. A number of parties were closed by the Constitutional Court, accepting that those parties had acted against "the order of democratic society" according to the Constitution as well as the Convention. According to the Turkis Constitutional Court, those parties used democratic rights, aimed at abolishing democracy itself. There is no legislation that allow the concerning parties to prohibit rights applied by themselves. On the other hand, the Conventional Court has not recognized such party prohibition saying that the party prohibition has not been needed to save "the order of democratic society". The Constitutional Court and the European Court has disagreement on the issue of political party prohibitions. If the programs and aims are in the scope of the freedom of expression, these political parties' prohibitions are accepted as misunderstanding of the Convention by the second one. As a result, it can be said that "the order of democratic society" measure could not be effective to save political parties from prohibition. The reason of this ineffectiveness is that the Constitutional Court has understood the named measure very 336weak and relatively restrictive. Although, the Constitutional Court accepts "standardised order of democratic society" understanding, it has applied this measure under standardised understanding in the cases of political party closures. In my opinion, the Constitutional Court must understand and apply the measure of "the order of democratic society" as how the Commission and the Court understand. So that, this measure can be an effective safeguard for the political parties, as well as other persons or related bodies. 337
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