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You are here: BAILII >> Databases >> European Court of Human Rights >> YUMAK AND SADAK v. TURKEY - 10226/03 [2008] ECHR 1887 (8 July 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1887.html Cite as: [2008] ECHR 1887, (2009) 48 EHRR 14

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GRAND CHAMBER

CASE OF YUMAK AND SADAK v. TURKEY

(Application no. 10226/03)

JUDGMENT

STRASBOURG

8 July 2008

This judgment is final but may be subject to editorial revision.

In the case of Yumak and Sadak v. Turkey,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Boštjan M. Zupančič, President,
Peer Lorenzen,
Françoise Tulkens,
Josep Casadevall,
Rıza Türmen,
Corneliu Bîrsan,
Volodymyr Butkevych,
Nina Vajić,
Anatoly Kovler,
Vladimiro Zagrebelsky,
Elisabeth Steiner,
Javier Borrego Borrego,
Khanlar Hajiyev,
Renate Jaeger,
Ján Šikuta,
Isabelle Berro-Lefèvre,
Päivi Hirvelä, judges,
and Vincent Berger, Jurisconsult,

Having deliberated in private on 21 November 2007 and 4 June 2008,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

There appeared before the Court:

(a)  for the Government
Mr M. Özmen, co-Agent,
Mr H. Hünler, Counsel,
Mrs A. Özdemir,
Mrs V. Sirmen,
Mrs Y. Renda,
Mrs Ö. Gazialem, Advisers;

(b)  for the applicants
Mr T. Elçi, Representative,
Mr T. Fisher,
Mrs E. Frank, Advisers,
Mr R. Sadak, Applicant.

The Court heard addresses by Mr Elçi and Mr Özmen and replies from Mr Fisher and Mr Özmen to questions from several judges.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The parliamentary elections of 3 November 2002

B.  The parliamentary elections of 22 July 2007 (subsequent to the Chamber judgment)

II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE

A.  The constitutional and legislative context

1.  The Constitution

“Citizens shall have the right to vote, to stand for election, to engage in political activities independently or as members of a political party and to take part in referendums in accordance with the rules laid down by law.

Elections and referendums shall be conducted under the administration and supervision of the judiciary and in accordance with the principles of free, equal, secret and universal suffrage, in a single round of voting, the votes cast being counted and recorded in public. Nevertheless, the law shall make suitable provision for Turkish citizens resident abroad to be able to exercise their right to vote.

Every Turkish citizen of at least eighteen years of age shall have the right to vote and to take part in referendums.

Exercise of these rights shall be regulated by law.

Serving members of the armed forces, officer cadets and persons serving prison sentences, other than those convicted of an unintentional offence, shall be deprived of the right to vote.

The National Electoral Commission shall determine the measures to be taken to guarantee the security of the operations to count and record the votes in prisons and remand centres, and those operations shall be conducted in the presence of the competent judge, who shall take charge of and supervise them.

Electoral laws must reconcile fair representation with governmental stability.

Amendments to electoral laws shall not be applicable to elections taking place during the year following their entry into force.”

“Members of the Grand National Assembly of Turkey shall represent the whole nation and not the regions or persons which have elected them.”

2.  The electoral system

“... [P]olitical parties may not present joint lists...”

“In a general election parties may not win seats unless they obtain, nationally, more than 10% of the votes validly cast... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the 10% national threshold...”

Section 21(2)

“Persons wishing to stand as independent candidates shall deposit with the competent Treasury authorities, as a guarantee, a sum equal to the gross monthly salary of a civil servant of the highest rank, and shall place a receipt for payment of that sum in the file presenting their candidature in the parliamentary election.”

Section 41(1)

“... if, in a parliamentary election, an independent candidate has not obtained sufficient votes to win a seat, the sum deposited as a guarantee shall be forfeited to the Treasury.”

“In order to be able to take part in an election, a political party must have a seat in at least half the provinces and have held its general meeting at least six months before polling day, or must have a group within the Grand National Assembly.”

“Political parties are not entitled to assert that there exist within the territory of the Republic of Turkey minorities based on a race, religion, sect, culture or language.”

3.  Constitutional case-law

“The first paragraph of Article 67 of the Constitution provides that citizens are entitled to vote and stand for election in accordance with rules laid down by law. However, it does not grant an unlimited margin of appreciation to the legislature. By virtue of Article 67 elections are conducted under the administration and scrutiny of the judicial power and according to the principles of free, equal, secret and universal suffrage in a single ballot, the votes being counted and recorded in public. Provided those rules are complied with, the legislature may therefore adopt whatever electoral system it deems most appropriate. If the constituent assembly had had a particular system in mind, it would have adopted a binding rule. As it did not do so, the legislature is free to adopt the system it considers best adapted to the country's political and social conditions ...

Provided that it does not enact measures tending to restrict the free expression of the people, or subject political life to the hegemony of a single party, or destroy the multi-party system, parliament can put in place one of the existing electoral systems.”

The relevant passages of the judgment read as follows:

“... [T]he Constitution defines the Turkish State as a Republic... The constitutional structure of the State, which is based on national sovereignty, is a product of the nation's will, mediated through free elections. That choice, emphasised in the various Articles of the Constitution, is set forth clearly and precisely in Article 67, entitled 'The right to vote, to be elected and to engage in political activities'. Paragraph 6 of Article 67, as amended, provides that electoral laws must be framed in such a way as to strike a balance between the principles of 'fair representation' and 'governmental stability'. The aim is to ensure that the electors' will is reflected as far as possible [in] the legislature. ... [In order to] choose the system whose methods are most conducive to the expression of the collective will and the taking of collective decisions in the legislature, ... enacting the appropriate legislation in the light of the country's specific circumstances and the requirements of the Constitution, it is necessary to opt for [the system] which is most compatible with the Constitution or to reject any system incompatible with it.

The impact of a representative democracy is visible in various fields. The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments. ... Where representation is concerned, the importance attached to fairness is the main condition for governmental stability. Fairness ensures stability. However, the idea of stability, in the absence of fairness, creates instability. The principle of 'fair representation' with which the Constitution requires [compliance] consists in free, equal, secret and universal [suffrage], with one round of voting and public access to the counting of votes and the recording of results, and produces a number of representatives proportional to the number of votes obtained. The principle of 'governmental stability' is perceived as a reference to methods designed to reflect votes [within] the legislature so as to guarantee the strength of the executive power. The 'governmental stability' which it is sought to ensure through the threshold (described as a 'hurdle'), just like 'fair representation' ..., is protected by the Constitution. In elections ... importance must be attached to combining these two principles, which seem antinomic in certain situations, in such a way [as to ensure] that they counterbalance and complement each other...

In order to achieve the goal of 'governmental stability', set forth in the Constitution, a national [threshold] has been introduced...

Clearly, the [threshold] of 10% of the votes cast nationally laid down in section 33 of Law no. 2839 ... came into force with the approval of the legislature. Electoral systems must be compatible with constitutional principles ..., and it is inevitable that some of these systems should contain strict rules. Thresholds which result from the nature of the systems and [are expressed] in percentages, and [which] at national level restrict the right to vote and to be elected, are applicable [and] acceptable ... provided that they do not exceed normal limits... The [threshold] of 10% is compatible with the principles of governmental stability and fair representation...”

Three judges of the Constitutional Court out of eleven disagreed with the arguments of the majority, considering that the 10% national threshold was incompatible with Article 67 of the Constitution.

“Although a national threshold is imposed in parliamentary elections in accordance with the principle of 'governmental stability', imposing in addition a threshold for each electoral constituency is incompatible with the principle of 'fair representation'.”

4.  Brief account of past parliamentary elections

B.  Relevant Council of Europe documents

1.  Documents of the Parliamentary Assembly of the Council of Europe

“58. In well-established democracies, there should be no thresholds higher than 3% during the parliamentary elections. It should thus be possible to express a maximum number of opinions. Excluding numerous groups of people from the right to be represented is detrimental to a democratic system. In well-established democracies, a balance has to be found between fair representation of views in the community and effectiveness in parliament and government.”

“17.10  consider decreasing thresholds over 3% for parliamentary elections and .. consider the balance between fair representation and effectiveness in parliament and government”.

2.  Documents of the European Commission for Democracy through Law (the Venice Commission)

“[T]he effects of one particular electoral system can be different from country to country, [and] we must appreciate that electoral systems can pursue different, sometimes even antagonistic, political aims. One electoral system might concentrate more on a fair representation of the parties in parliament, while another one might aim to avoid a fragmentation of the party system and encourage the formation of a governing majority of one party in Parliament. One electoral system encourages a close relationship between voters and “their” constituency representatives, while another makes it easy for the parties to specifically introduce women, minorities or specialists into parliament by way of closed party lists. In some countries, complicated electoral systems are accepted in order to combine several political aims. In other countries, it is seen as a priority that the electoral system be not too difficult for the electorate and the administration to understand and operate. The appropriateness of an electoral system is determined according to whether it will do justice, bearing in mind the local conditions and problems. In particular, transparency of the elaboration of the list should be ensured. Thus, the electoral system and proposals to reform should be assessed in each individual case.”

“...

d.  Electoral thresholds should not affect the chances of national minorities to be represented.

e.  Electoral districts (their number, the size and form, the magnitude) may be designed with the purpose to enhance the minorities' participation in the decision-making processes.”

3.  Documents specifically relating to elections in Turkey

(a)  Report of the Ad hoc Committee of the Parliamentary Assembly of the Council of Europe

“As widely reported by the media, two parties only out of 18 found their way into the new TBMM; the AKP (Justice and Development) and CHP (Republican People's Party), leaving out all other parties, which had been represented so far in the parliament because they could not meet the 10% threshold. The party in government until the elections received only 1% of the votes. Economic and corruption problems were determining in the elections.

A clear and absolute majority has emerged with 362 seats for the AKP, 179 seats for the opposition and 9 seats for independent members. (These independent members are elected in small towns where they have a good reputation.) It should be recalled that AKP had 59 seats in the previous parliament, and the CHP three (1999 elections).

This situation might create probably greater stability in the country by avoiding complicated and unstable coalitions. On Monday 4 November 2002 the Turkish stock exchange went up by 6.1%.

However, it also means that approximately 44% of the voters have no representation in the Parliament.

The results must thus be considered as a clear protest vote against the establishment as a whole, since none of the three parties in the old governing coalition got enough votes for a single seat!”

(b)  The Parliamentary Assembly's Resolution 1380 (2004)

“6.  With regard to pluralist democracy, the Assembly recognises that Turkey is a functioning democracy with a multiparty system, free elections and separation of powers. The frequency with which political parties are dissolved is nevertheless a real source of concern and the Assembly hopes that in future the constitutional changes of October 2001 and those introduced by the March 2002 legislation on political parties will limit the use of such an extreme measure as dissolution. The Assembly also considers that requiring parties to win at least 10% of the votes cast nationally before they can be represented in parliament is excessive and that the voting arrangements for Turkish citizens living abroad should be changed.

...

23.  The Assembly therefore invites Turkey, as part of its authorities' current reform process, to:

...

ii.  amend the electoral code to lower the 10% threshold and enable Turkish citizens living abroad to vote without having to present themselves at the frontier;

...”

(c)  Report on “Observation of the Parliamentary elections in Turkey (22 July 2007)”

“XII.  Conclusions and recommendations

55.  The parliamentary elections in Turkey, on 22 July 2007, were generally in compliance with Turkey's Council of Europe commitments and European standards for free elections.

56.  Overwhelmingly, the voting was well - organised and conducted in an orderly and professional fashion, which testifies to a long-standing tradition of democratic elections in Turkey.

57.  The high voter turnout shows that confidence in the democratic process exists in Turkey.

58.  Electoral administrators at all levels dispatched their duties effectively and in good faith.

59.  However, the Rapporteur believes that Turkey could do more in terms of organising even better elections that would guarantee a genuinely representative Parliament. The 10% threshold requirement could be lowered, in accordance with Assembly Resolutions 1380 (2004) and 1547(2007). The fact that the new Parliament elected on 22 July 2007 is far more representative than the outgoing Parliament representing about 90 percent of the opinions of the electorate, is due to the fact that three instead of two parties are represented and to the ploy of opposition parties to launch party-sponsored independent candidates and not to any steps taken by the Turkish authorities themselves.

60.  The Turkish authorities may wish to consider seizing the Venice Commission on this issue, as well as on simplifying electoral legislation.”

“Mr Gül explained that the 10% threshold had been introduced to remedy the instability of previous years, in which there had been a large number of coalition governments in close succession. The threshold did not prevent independent candidates from standing. In the latest parliamentary elections, in July 2007, voter turnout had been 85%, which showed how representative parliament was. Now that political stability had been restored the 10% threshold could be reconsidered.”

C.  Comparative law

THE LAW

I.  SCOPE OF THE GRAND CHAMBER'S JURISDICTION

“The applicants alleged that the imposition of an electoral threshold of 10% in parliamentary elections interfered with the free expression of the opinion of the people in the choice of the legislature.”

II.  ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

A.  The Chamber judgment

B.  Arguments of the parties

1.  The applicants

2.  The Government

C.  Submissions of the third-party intervener

D.  The Court's assessment

1.  General principles established by the case-law of the Convention institutions

(a)  Criteria applied by the Court in relation to Article 3 of Protocol No. 1

(i)  Article 3 of Protocol No. 1 seems at first sight different from the other provisions of the Convention and its Protocols which guarantee rights, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom. However, having regard to the travaux préparatoires of Article 3 of the Protocol and the way the provision has been interpreted in the context of the Convention as a whole, the Court has established that Article 3 of Protocol No. 1 guarantees individual rights, including the right to vote and the right to stand for election (see Mathieu-Mohin and Clerfayt, cited above).

(ii)  The rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations”, and Contracting States must be given a wide margin of appreciation in this sphere. (see, among other authorities, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999 I, and Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000 IV).

(iii)  The concept of “implied limitations” under Article 3 of Protocol No. 1 is of major importance for the determination of the relevance of the aims pursued by the restrictions on the rights guaranteed by this provision. Given that Article 3 is not limited by a specific list of “legitimate aims” such as those enumerated in Articles 8-11, the Contracting States are therefore free to rely on an aim not contained in that list to justify a restriction, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention is proved in the particular circumstances of a case. It also means that the Court does not apply the traditional tests of “necessity” or “pressing social need” which are used in the context of Articles 8-11. In examining compliance with Article 3 of Protocol No. 1, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people.

(iv)  However, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. It has to satisfy itself that limitations do not curtail the rights in question to such an extent as to impair their very essence, and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62; Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999 VI, and Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004 X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws which it promulgates (see Hirst (no. 2), cited above, § 62).

(v)  As regards the right to stand as a candidate for election, i.e. the
so-called “passive” aspect of the rights guaranteed by Article 3 of Protocol No. 1, the Court has been even more cautious in its assessment of restrictions in that context than when it has been called upon to examine restrictions on the right to vote, i.e. the so-called “active” element of the rights under Article 3 of Protocol No. 1. In the Melnychenko judgment cited above (§ 57), the Court observed that stricter requirements may be imposed on eligibility to stand for election to Parliament than is the case for eligibility to vote. On that point, it took the view that, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (ibid. § 59; see also mutatis mutandis, Podkolzina, cited above, § 35).

(vi)  Similarly, the Court has held that, once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic order (see Lykourezos v. Greece, no. 33554/03, § 52, ECHR 2006 VIII).

(b)  Electoral systems and thresholds

2.  Application of the above principles in the present case

(a)  Legitimate aim

(b)  Proportionality

i.  Elements of comparative law

ii.  Correctives and other safeguards

iii.  Conclusion

FOR THESE REASONS, THE COURT

Holds by thirteen votes to four that there has been no violation of Article 3 of Protocol No. 1.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 July 2008.

Vincent Berger Boštjan M. Zupančič
Jurisconsult President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Tulkens, Vajić, Jaeger and Šikuta is annexed to this judgment.

B.M.Z.
V.B.

JOINT DISSENTING OPINION OF JUDGES TULKENS, VAJIĆ, JAEGER AND ŠIKUTA

(Translation)

We do not agree with the majority's conclusion that there has been no violation of Article 3 of Protocol No. 1, although we take the same principles as our starting-point (paragraphs 105 to 115 of the judgment).

As established in the parliamentary elections of 1987, 1991, 1995 and 1999, the proportion of the votes cast in favour of parties not represented in parliament was, respectively, 19.4% (about 4.5 million votes), 0.5% (about 140,000 votes), 14% (about 4 million votes) and 18.3% (about 6 million votes). The results of the 2002 election led to a “crisis of representation”, since 45.3% of the votes – about 14.5 million votes – had not been taken into consideration and were not reflected in the composition of parliament¹. According to an OSCE report, the 10% national threshold in Turkey's electoral system virtually eliminates the possibility of regional or minority parties entering the Turkish Grand National Assembly and distorts the essential purpose of a proportional system². In fact, the high 10% threshold tends to suppress parliamentary criticism and debate, which are the essence of representative democracy. And as the Court has repeatedly observed, there can be no democracy without pluralism (see Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, §§ 39 and 41, ECHR 1999 VIII,).

subjecting it to any criticism. Some have argued, however, that a study of the historical background in Turkey casts doubt on this objective, since under an electoral system without such a high threshold it was also possible for solid governments to be formed¹. Conversely, such a threshold brings more polarisation than stability.

Moreover, in practice, smaller groups are now represented in parliament by means of circumvention (cf. infra, point 4.). Thus the purpose of the law can no longer be considered to be the exclusion of smaller parties or groups from parliament, as the only remaining effect seems to be that it weakens within the election process the chances of all smaller parties which are not sure to pass the threshold. They have either to find allies or disappear during elections by having their candidates stand as independents.

However, that argument – which at first sight appears reasonable – is rendered considerably less persuasive by the fact that it was not just in those elections of November 2002 that the high threshold of 10% was used. Firstly, the system was adopted much earlier, in 1983, and since then numerous political parties following extremely varied political lines have been unable to secure seats in parliament, having failed to get over the threshold (paragraph 123). Secondly, the threshold was also applied after the 2002 elections, during the parliamentary elections of 22 July 2007. It is true that reforms of the electoral system have been discussed, but to date an invisible hand seems to have prevented these from coming to fruition. In those circumstances, we consider that the argument which the majority found decisive, namely the specific context of the 2002 elections, is not relevant.

But what are the safeguards concerned? The Court acknowledges itself that they amount to “stratagems” which political parties are compelled to make use of and which do not contribute to the transparency of the electoral process (ibid.). A stratagem is literally a ruse, as in the phrase ruse de guerre. Can a democratic system which does not function properly be corrected by “stratagems” and thus made compatible with the Convention?

In concrete terms, Turkish political parties have developed electoral techniques to “by-pass” the obstacles; these include in particular putting up independent candidates supported by a party (but who immediately rejoin their original party once elected) and adding candidates from one party to the list of another party. The Court had no hesitation in finding that this was only a makeshift solution (paragraph 138). It also drew attention to all the difficulties in such a system, inasmuch as these candidates are subject to a number of unfavourable restrictions and conditions compared with political parties (see, for instance, paragraph 36 of the judgment). The Court nevertheless accepted these “stratagems” on account of what was presented as their result in practice. In other words, the end justifies the means.

Apart from the obvious problem of political morality that such a position raises, it seems to us to be logically difficult to accept, since the Court itself acknowledges that these “stratagems” run counter to the legitimate aim of fixing such a high threshold, namely preventing parliamentary fragmentation. Furthermore, these correctives and safeguards are exclusively the result of political considerations and agreements and there can be no certainty that they will remain available in the future. These practices, which are in any case themselves contrary to the Turkish Constitution and Turkish electoral legislation (section 16 of Law no. 2839 on the election of members of the National Assembly), may be changed and disappear from one day to the next. That being the case, it is difficult to accept that such correctives may be described as safeguards for the purposes of the Convention. Lastly, the Court did not consider the detrimental effect of these techniques on the party system as such when parties have to seek and find protection from other parties for the purpose of slipping through the 10% threshold. In themselves, parties represent and unite different currents of thought. Any interference with their independent participation in elections curtails the free expression of the opinion of the people – whether the interference is direct or indirect. Certainly, this is the case when different parties form hidden alliances during the elections, by-passing the legislation in place as interpreted by the Constitutional Court (paragraph 42 of the judgment). To achieve such alliances, candidates from one party have to be accepted, even approved of by another party, which undermines the independence of parties especially in respect of their representatives standing as candidates on other parties' lists. In other words, it means playing “hide and seek” with voters, thus undermining essential democratic principles.

Free elections are one of the foundations of justice and peace in Europe; they are indispensable for the development of an effective political/pluralist democracy and thus of the rule of law and observance of human rights. It is difficult to see how these fundamental goals, underlying not only the Convention but the whole Council of Europe system, can be achieved if based on electoral rules that need to be circumvented (paragraphs 133 146, in particular 139 and 143) in order to be compatible with the Convention. Changes in this direction, by introducing the necessary reforms of the electoral system in a clear and transparent way, would thus – in our opinion – be the only appropriate way to improve the present situation in accordance with the Convention.