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SECOND
SECTION
CASE OF
YUMAK AND SADAK v. TURKEY
(Application
no. 10226/03)
JUDGMENT
STRASBOURG
30 January
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Yumak and Sadak v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D.
Popović, judges,
and Mrs S. Dollé, Section
Registrar,
Having
deliberated in private on 9 May 2006 and 4 January 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 10226/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Turkish nationals, Mr Mehmet Yumak and
Mr Resul Sadak (“the applicants”), on 1 March 2003.
- The
applicants were granted legal aid.
- They
alleged that the national electoral threshold of 10% for
parliamentary elections interfered with the free expression of the
opinion of the people in the choice of the legislature. They relied
on Article 3 of Protocol No. 1.
- By
a decision of 9 May 2006 the Chamber declared the application partly
admissible.
- The
applicants and the Government each filed further written observations
(Rule 59 § 1).
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 5 September 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr A.M.
Özmen, Co-Agent,
Mr M.H. Ünler,
Mrs V.
Sirmen,
Mrs Y. Renda,
Mrs A. Özdemir,
Mrs Ü.
Yeğengil,] Advisers;
(b) for the applicants
Mr T.
Elçi, Counsel,
Mrs S. Turan, Adviser.
The
Court heard addresses by Mr Özmen and Mr Elçi.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1962 and 1959 respectively
and live in Şırnak. They stood for election in the
parliamentary elections of 3 November 2002 as candidates of the
People’s Democratic Party (DEHAP) in the province of Şırnak,
but neither of them was elected.
A. The parliamentary elections of 3 November 2002
- Following
the 1999 earthquakes Turkey went through two serious economic crises
in November 2000 and February 2001. There then followed a political
crisis, due firstly to the state of health of the then Prime Minister
and secondly to the numerous internal divisions within the governing
coalition, a grouping of three political parties.
- It
was in that context that on 31 July 2002 the Grand National Assembly
of Turkey (“the National Assembly”) decided to bring
forward the date of the next parliamentary elections to 3 November
2002.
- In
early September three left-wing political parties, HADEP, EMEP and
SDP, decided to form a “Labour, Peace and Democracy Block”
and to form a new political party, DEHAP. The applicants began their
electoral campaign as the new party’s leading candidates in the
province of Şırnak.
- The
results of the elections of 3 November 2002 in the province of Şırnak
gave the DEHAP list 47,449 of the 103,111 votes cast, a score of
about 45.95%. However, as the party had not succeeded in passing the
national threshold of 10%, the applicants were not elected. The three
seats allocated to Şırnak province were shared as follows:
two seats for the AKP (Adalet ve Kalkınma – the
Justice and Development Party, a party of the conservative right),
which had polled 14.05% (14,460 votes), and one seat for Mr Tatar, an
independent candidate who had polled 9.69% (9,914 votes).
- Of
the eighteen parties which had taken part in the elections only the
AKP and the CHP (Cumhuriyet Halk Partisi – the People’s
Republican Party, a left-wing party) succeeded in passing the 10%
threshold. With 34.26% of the votes cast, the AKP won 363 seats, 66%
of those in the National Assembly. The CHP, which polled 19.4%,
obtained 178 seats, or 33% of the total. Nine independent candidates
were also elected.
- The
results of these elections were generally interpreted as a huge
political upheaval. Not only did the proportion of the electorate not
represented in parliament reach a record level in Turkey
(approximately 45%) but in addition the abstention rate (22% of
registered voters) exceeded 20% for the first time since 1980. As a
result, the National Assembly which emerged from the elections was
the least representative since 1946, the year in which a multi-party
system was first introduced. Moreover, for the first time since 1954,
only two parties were represented in parliament.
- To
explain the National Assembly’s unrepresentativity, some
commentators
have referred to the cumulative effect of a number of factors over
and above the existence of a high national threshold. For example,
because of the protest vote phenomenon linked to the economic and
political crisis, the five parties which had obtained seats in the
1999 parliamentary elections were unable to reach the 10% threshold
in 2002 and were accordingly deprived of representation in
parliament. Similarly, electoral fragmentation had an effect on the
results in that numerous attempts to form pre-electoral coalitions
had come to nothing.
B. The general context and the electoral system
- The
electoral system is one of the subjects which have been the most
debated in Turkey; it still remains highly controversial.
- The
elections of 1950, 1954 and 1957 – in which the majority
representation system was used – were unable to ensure an
institutional balance between the majority in parliament and the
opposition. This imbalance was one of the main reasons for the 1960
coup d’état. Following the intervention of the armed
forces parliament adopted proportional representation, using the
D’Hondt method, to strengthen pluralism and the political
system. As a result, the elections in 1965 and 1969 produced stable
majorities in the National Assembly while enabling small parties to
be represented. However, in the elections of 1973 and 1977 the main
political movements were unable to establish stable governments,
although they had wide electoral support. That period of government
instability was marked by the formation of one coalition after
another, each made fragile by the disproportionate influence of the
small parties on government policy.
- Following
the military regime of the years 1980 to 1983 Law no. 2839 on
the election of members of the National Assembly, enacted on 13 June
1983, re-established proportional representation, with two electoral
thresholds. To the 10% national threshold was added a provincial
threshold (the number of electors divided by the number of seats to
be filled in each constituency); in 1995 the Constitutional Court
declared the provincial threshold null and void. In the 1983
parliamentary elections the Motherland Party (ANAP) obtained an
absolute majority in parliament.
- The
parliamentary elections of 29 November 1987 likewise enabled the
ANAP, with 36.31% of the vote, to form a stable parliamentary
majority. Two other parties also won seats. About 19% of votes were
cast in favour of parties which ultimately failed to reach the 10%
threshold. In the elections of 20 October 1991 five parties gained
seats in parliament. This result was due in particular to the fact
that three small political parties (MÇP, IDP and HEP) had
taken part in the elections under the banner of other political
parties with the aim of circumventing section 16 of Law
no. 2839, which makes it illegal to form joint lists before
elections. The proportion of the votes cast in favour of parties not
represented in the new parliament thus fell to 0.5%. The Government
was based on a coalition of two parties. In those elections the
eighteen candidates of the HEP (People’s Labour Party –
pro-Kurdish) were elected to parliament on the list of the
(social-democratic) SHP party; they later resigned from the SHP to
join the ranks of their own party, the HEP.
- In
the general election of 24 December 1995 five parties gained seats in
parliament. However, as none of them had a parliamentary majority, a
coalition was formed. The proportion of the votes cast in favour of
parties not represented in parliament came to 14%.
- The
1999 parliamentary elections again resulted in no party having a
parliamentary majority. Five political parties won seats in the
National Assembly. A coalition of three parties formed a government.
The proportion of the votes cast in favour of parties not represented
in parliament came to 18%.
- At
present, numerous proposals to correct the effects of the 10%
threshold have been put forward, both in parliament and by leading
figures of civil society.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Relevant domestic texts
1. The Constitution
- Article
67 § 6 of the Constitution, as amended on 23 July 1995,
provides:
“Electoral laws must strike a balance between fair
representation and governmental stability.”
- Article
80 of the Constitution provides:
“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
- Law
no. 2839 on the election of members of the National Assembly,
published in the Official Gazette on 13 June 1983, lays down the
rules of the system for parliamentary elections.
- The
Turkish National Assembly has 550 members, elected in
85 constituencies in a single round of voting. They take place
throughout the national territory, on the same day, under the
proportional representation system. The suffrage is free, equal,
universal and secret. Counting the votes and recording the results is
done in public. Each province forms one electoral constituency.
- Section
16 of Law no. 2839 provides:
“... [P]olitical parties may not present joint
lists...”
- Section
33 of Law no. 2839 (as amended on 23 May 1987) provides:
“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...”
- In
allocating seats the D’Hondt system of proportional
representation is used. That method – under which the votes
cast for each list are first divided by a series of whole numbers (1,
2, 3, 4, 5 etc.) and seats then allocated to the lists which have the
highest quotients – tends to favour the majority party.
3. Constitutional case-law
- In
a judgment of 18 November 1995 (E. 1995/54, K. 1995/59) the
Constitutional Court had the opportunity to rule on the
constitutionality of section 34/A of Law no. 2839. That section,
which referred to section 33 of the same law, also imposed the
electoral threshold of 10% for the allocation of the seats for
Assembly members elected in the “national constituency”.
- The
Constitutional Court declared the provisions establishing the
national constituency null and void, but held that the 10% national
threshold could be regarded as compatible with Article 67 of the
Constitution.
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 disagreed with the arguments of
the majority, considering that the 10% national threshold was
incompatible with Article 67 of the Constitution.
- In
the same judgment, however, the Constitutional Court declared null
and void an electoral threshold of 25% for the allocation of seats
within provinces (provincial threshold). Holding that such a
threshold was inconsistent with the principle of fair representation,
it observed:
“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’.”
B. Relevant Council of Europe documents
1. Report of the ad
hoc Committee of the Parliamentary Assembly of the Council
of Europe
- The
Government referred to the report of the Ad hoc Committee for the
Observation of Parliamentary Elections in Turkey (3 November 2002),
produced on 20 December 2002. The relevant parts of the report read
as follows:
“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!”
2. The Code of good practice in electoral matters
- The
Council of Europe has not issued any binding standards for electoral
thresholds. The question has not been raised in the organisation’s
standard-setting texts. On the other hand, the Code of good practice
in electoral matters, adopted by the Venice Commission, makes
recommendations on the subject (see Venice Commission, “Code of
good practice in electoral matters: Guidelines and explanatory
report”, Opinion no. 190/2002). As a general principle, the
Code requires suffrage to be direct, but in the case of a bicameral
parliament it permits one of the Chambers to be elected by indirect
suffrage. As for the electoral system to be used, the Code’s
guidelines state that any system may be chosen.
3. The Parliamentary Assembly’s Resolution 1380
(2004)
- Paragraphs
6 and 23 of Resolution 1380 (2004) on “Honouring of obligations
and commitments by Turkey”, adopted by the Parliamentary
Assembly of the Council of Europe on 22 June 2004, are worded as
follows:
“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. Comparative law
- Although
there is no uniform classification of types of ballot and electoral
systems, it is usual to distinguish three main types: majority vote
systems, proportional systems and mixed systems. In majority vote
systems the winner is the candidate or list of candidates obtaining
the majority of the votes in the decisive round of voting. This type
of ballot makes it possible to vote in governments with clear
parliamentary majorities, but at the same time it militates against
the representation of minority political parties. Thus, for example,
in the United Kingdom the use over many decades of a single round of
voting in a single-member majority-vote system (“first past the
post”), combined with the existence of two dominant political
parties, has had the effect of giving few seats to other parties in
relation to the number of votes that they obtain. There are other
similar cases, in France for instance, where there is a majority-vote
system spread over two rounds of voting. At the opposite extreme, the
aim of the proportional representation system is to ensure that the
votes cast are reflected in a proportional number of seats.
Proportional representation is generally considered to be the fairest
system because it tends to reflect more closely the various political
forces. However, the disadvantage of proportional representation is
that it tends to lead to fragmentation among those seeking electoral
support and thus makes it more difficult to establish stable
parliamentary majorities.
- Currently,
proportional systems are the most widely used in Europe. By way of
example, Denmark, Spain, Estonia, Ireland, Luxembourg, Malta,
Moldova, Norway, Poland, Portugal, the Czech Republic, Romania,
Sweden, Bulgaria and Turkey have opted for one or other variant of
proportional representation. There are also mixed systems containing
various combinations of the two types of ballot (in Italy, Lithuania,
Russia, Ukraine and Germany, for example).
- In
order to ensure stable majorities in legislatures elected by
proportional representation, statutory electoral thresholds are often
used. Thresholds are “limits, fixed or variable, defined in
terms of the electoral result, which determine the share of a list or
candidate in the distribution of seats”. However, the role
played by thresholds varies in accordance with the level at which
they are set and the party system in each country. A low threshold
excludes only very small groupings, which makes it more difficult to
form stable majorities, whereas in cases where the party system is
highly fragmented a high threshold deprives many voters of
representation.
- Among
the member States of the Council of Europe which use one or other
variant of proportional representation in the context of a mixed
system, and which set an electoral threshold, the following examples
may be found. In Sweden a party must gain 4% of the votes cast
nationally or 12% of the votes cast in the base constituency in which
the seat is to be allocated. In Bulgaria a national threshold of 4%
is imposed. In Liechtenstein it is necessary to pick up 8% of the
votes cast nationally. In Denmark parties must either pick up 2% of
the votes cast nationally or obtain a particular number of votes in
two of the country’s three geographical zones. In the
Netherlands there is a national threshold fixed at 0.67% of the votes
cast.
- As
a general rule, the threshold fixed does not apply as such to
coalitions, which must pass higher thresholds. In the Czech Republic,
for example, the threshold for one party is 5%, whereas in the case
of a coalition it is raised by 5% for each of the constituent
parties. In Romania the base threshold of 5% is raised by 3%, and
only a further 1% for coalitions with three or more members. In
Poland the electoral threshold varies between 5% for local lists and
8% for national lists; for a coalition the threshold is set at 8%
whatever the number of constituent parties. Following the same logic,
the threshold for independent candidates is lower – 3% in
Moldova, for example.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1
- 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. They
relied on Article 3 of Protocol No. 1, which provides:
“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. Arguments of the parties
1. The applicants
- The
applicants submitted in the first place that the electoral threshold
was based on the particular situation in Turkey after the 1980
military regime and that its aim was to depoliticise society by
installing an authoritarian government.
- Secondly,
they rejected the argument that the threshold served the legitimate
aim of ensuring governmental stability. A study of the historical
background in Turkey showed that an electoral system without a
threshold could also enable solid governments to be formed. Observing
that a proportional system without a threshold had been used in the
parliamentary elections of 1965, 1969, 1973 and 1977, they emphasised
that after the first two of those elections it had proved possible to
form single-party governments. Moreover, during the period 1983-2006
Turkey had had only three single-party governments, even though the
threshold had then been in force. Imposing such a high threshold did
not serve any legitimate aim.
- The
applicants contended that it was difficult to defend the view that
the exceptional measure in question strengthened representative
democracy. Such a high national threshold made representation very
unfair and led to a crisis of legitimacy for the government, since
parliament ought to be the free tribune of any democracy. Clearly, a
parliament whose composition reflected only about 55% of the votes
cast was not capable of supplying the representative legitimacy on
which any democracy is based.
- The
national threshold of 10% was also disproportionate and arbitrary,
and impaired the very essence of the right guaranteed by Article 3
of Protocol No. 1. It deprived a large proportion of the population
of the possibility of being represented in parliament. In the
parliamentary elections of 1987, 1991, 1995 and 1999 the proportion
of the votes cast in favour of parties not represented in parliament
had been, 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 had led to a “crisis
of representation”, since 45.3% of the votes – that is,
about 14.5 million votes – had not been taken into
consideration and were not reflected in the composition of
parliament.
- The
applicants also stressed the question of regional representation.
They asserted that the parties from the south-eastern part of the
country did not have a single member of parliament, although they
could count on about two million votes. They submitted in that
connection that the electoral threshold had been fixed in particular
to block the representation of the Kurdish people of the region. In
addition, whereas DEHAP was the leading party in thirteen provincial
constituencies and the second strongest in two more, it had not
obtained a single seat in parliament.
- Lastly,
the applicants submitted that the electoral threshold of 10% was very
high in comparison with the thresholds which applied in other
European systems. They argued that there was no good reason to impose
a minimum of 10% nationally and that such an obstacle was
fundamentally at variance with representative democracy.
2. The Government
- Referring to the principles established in the
Mathieu-Mohin and Clerfayt v. Belgium case (judgment of 2
March 1987, Series A no. 113), the Government submitted that Article
3 of Protocol No. 1 did not set forth an absolute right to vote and
that the Contracting States should be left a wide margin of
appreciation with regard to the fixing of electoral thresholds.
- They
observed that Article 3 of Protocol No. 1 did not include expressions
such as “everyone” or “no one shall”, arguing
that this seemed to indicate merely an undertaking on the part of the
High Contracting Parties “to hold free elections at reasonable
intervals by secret ballot”.
- Article
3 of Protocol No. 1 guaranteed in principle the right to vote and the
right to stand for election to the legislature. Consequently, it
provided for the organisation of free elections without imposing any
particular electoral system. In addition, these elections had to be
held by secret ballot and at “reasonable” intervals.
Admittedly, the elections had to be held under conditions calculated
to ensure “the free expression of the opinion of the people”.
That concept meant that no constraint or pressure was to be brought
to bear on electors to influence their choice of candidate; it also
implied, essentially, the principle of equal treatment for all
citizens in the exercise of their right to vote and their right to
stand for election.
- As
regards the Turkish electoral system, the Government explained that
Law no. 2839 had introduced the proportional system with a national
threshold of 10%. That system had made it possible to form majorities
in the aftermath of the elections in 1983, 1987, 1991, 1995, 1999 and
2002. Thanks to the threshold, it had been possible after three of
those elections to form a government from the representatives of a
single majority party. That meant that the threshold served a
legitimate aim, namely ensuring governmental stability, and that
there was a consensus in favour of keeping it. Moreover, in its
judgment of 18 November 1995 the Constitutional Court had held that
the threshold was not an obstacle to “fair representation”,
a principle enshrined in the Constitution since 1995.
- The
Government went on to say that the national threshold had been
introduced with the aim of preventing political fragmentation among
the representatives of the people. Furthermore, the intention was to
give small groupings the opportunity of establishing themselves
nationally and thus of securing representation in parliament. The
threshold applied to all the parties which had taken part in the 2002
elections. For example, the DSP (Democratic Left Party), the ANAP and
the MHP (Nationalist Movement Party), which had formed the coalition
government after the 1999 elections, had obtained, respectively,
1.23%, 5.12% and 8.34% of the votes and had not been able – any
more than DEHAP had, with 6.23% of the votes – to obtain a seat
in parliament. The same was true of the GP (Youth Party), the SP
(Socialist Party) and the YTP (New Turkey Party) which had polled
7.25%, 2.49% and 1.15% respectively.
- The
Government pointed out that if DEHAP had succeeded in crossing the
10% threshold it would have won seats in parliament, like the AKP and
the CHP, which had obtained 34.26% and 19.4% of the votes
respectively.
- They
further submitted that in domestic law there was nothing to prevent
political parties from forming coalitions in order to get through the
10% barrier. DEHAP could have organised a coalition with the other
political parties who had presented candidates in the elections on
3 November 2002 and thereby gained seats in the Grand National
Assembly. In that connection they emphasised that independents, who
had obtained 1% of the votes, had won nine seats.
- The
Government further observed that the CHP – the second strongest
party in parliament after the 2002 elections – had been unable
to cross the threshold in the 1999 parliamentary elections. That
showed that a political party which did not get over the hurdle at
any particular election could do so at a later one and thus obtain
members’ seats.
- Moreover,
the Government emphasised that between 1961 and 1980, during which
period proportional representation without any electoral threshold
was the practice followed, Turkey had had twenty different
governments, whereas during the period 1983 to 2006, during which the
10% threshold had been in force, there had been six – three
coalitions and three single-party governments. That clearly showed
that the threshold ensured political stability, which had a crucial
influence on the country’s economy.
- In
conclusion, the Government submitted that the 10% threshold was not
an obstacle to the free expression of the opinion of the people in
the choice of the legislature. Lastly, they drew the Court’s
attention to the fact that the current parliament reflected the votes
of more than 50% of the electors.
B. The Court’s assessment
1. General principles
- 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, pp. 22 23,
§§ 46 51). In fact, it has taken the view that this
wording, of a type which does not have its like elsewhere, can be
explained by the desire to give greater solemnity to the commitment
undertaken by the Contracting States and emphasise that this is a
sphere in which they are under an obligation to take positive
measures and not just refrain from interference (ibid., §
50).
- The
Court, which has frequently pointed out the importance of the
democratic principles underlying the interpretation and application
of the Convention (see, among other authorities, United Communist
Party of Turkey and Others v. Turkey, judgment of 30 January
1998, Reports of Judgments and Decisions 1998 I, §
45), emphasises that the rights guaranteed by Article 3 of Protocol
No. 1 are crucial to establishing and maintaining the foundations of
a meaningful democracy governed by the rule of law.
- Nonetheless,
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 margin of appreciation in this sphere.
- The
scope of that margin in the present case has given rise to
considerable debate. The Court re-affirms that the margin of
appreciation in this area is wide (see Mathieu-Mohin and Clerfayt,
cited above, § 52; and, more recently, Matthews v. the United
Kingdom [GC], no. 24833/94, § 63, ECHR 1999 I;
Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000 IV;
Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002 II;
and Hirst v. the United Kingdom (no. 2) [GC], no.
74025/01, § 61, ECHR 2005 IX). The same applies to
determination of the type of ballot through which the expression of
the opinion of the people is mediated, whether proportional
representation, majority voting or some other system (see Matthews,
cited above, § 63). In that connection, Article 3 of the
Protocol goes no further than prescribing “free”
elections held at “reasonable intervals” “by secret
ballot” and “under conditions which will ensure the free
expression of the opinion of the people”. Subject to that
reservation, it does not create any “obligation to introduce a
specific system” such as proportional representation or
majority voting with one or two ballots (see Mathieu-Mohin and
Clerfayt, cited above, § 54).
The
rules in this area vary in accordance with the historical and
political factors specific to each State; the large variety of
situations provided for in the electoral legislation of numerous
member States of the Council of Europe shows the diversity of the
possible options. For the purposes of applying Article 3 of the
Protocol, any electoral legislation must be assessed in the light of
the political evolution of the country concerned, so that features
that would be unacceptable in the context of one system may be
justified in the context of another (see Py v. France, no.
66289/01, § 46, ECHR 2005 I (extracts)), at least so
long as the chosen system provides for conditions which will ensure
the “free expression of the opinion of the people in the choice
of the legislature”.
- Moreover,
it should not be forgotten that electoral systems seek to fulfil
objectives which are scarcely compatible with each other: on the one
hand to reflect fairly faithfully the opinions of the people, and on
the other, to channel currents of thought so as to promote the
emergence of a sufficiently clear and coherent political will. In
these circumstances the phrase “conditions which will ensure
the free expression of the opinion of the people in the choice of the
legislature” implies essentially – apart from freedom of
expression (already protected under Article 10 of the Convention) –
the principle of equality of treatment of all citizens in the
exercise of their right to vote and their right to stand for
election. It does not follow, however, that all votes must
necessarily have equal weight as regards the outcome of the election
or that all candidates must have equal chances of victory. Thus no
electoral system can eliminate “wasted votes” (see
Mathieu-Mohin and Clerfayt, cited above, § 54).
- And
yet none of the above criteria should in principle be considered more
valid than any other, provided that it guarantees the expression of
the opinion of the people through free, fair and regular elections.
- The
Convention institutions have always considered electoral thresholds
in the context of the margin of appreciation left to member States,
noting that in this sphere States enjoy considerable latitude (see
Federación nacionalista Canaria v. Spain (dec.), no.
56618/00, ECHR 2001 VI; Etienne Tete v. France, no.
11123/84, Commission decision of 9 December 1987, Decisions and
Reports (DR) 54, p. 52; Marcel Fournier v. France, no.
11406/85, Commission decision of 10 March 1988; and Silvius
Magnago and Südtiroler Volkspartei v. Italy, no. 25035/94,
Commission decision of 15 April 1996, DR 85, p. 112).
- 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 Hilbe v. Liechtenstein (dec.), no.
31981/96, ECHR 1999 VI, and Melnichenko 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. Exclusion of any groups or categories of the general
population must accordingly be reconcilable with the underlying
purposes of Article 3 of Protocol No. 1 (see, mutatis
mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR
2004 V). Equally, 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 ...).
2. Application of the above principles in the present
case
- In
the applicants’ submission, the fact that they were not elected
to the National Assembly, despite the score of 45.95% of the votes
cast in the constituency of Şırnak achieved in the
parliamentary elections of 3 November 2002 by DEHAP, the party
on whose list they had stood for election, was incompatible with
Article 3 of Protocol No. 1. They explained that their party, which
had polled 6.22% of the national vote, had failed to reach the
electoral threshold of 10% and had accordingly been deprived of
parliamentary representation.
- However,
the Court notes that the national threshold concerned is the product
of an electoral rule which determines how the seats in parliament are
to be shared nationally among the different lists and different
candidates. Its effect is to deprive of parliamentary representation
those political parties which fail to cross it. It is provided for in
section 33 of Law no. 2839 and was introduced well before the
elections of 3 November 2002, so that the applicants could have
foreseen that if their party failed to get over the hurdle complained
of in those elections they would not be able to win any seats in
parliament regardless of the number of votes they obtained in their
constituency (see, by converse implication, Lykourezos, cited
above, § 55).
- The
Court would further point out that, unlike other Convention
provisions, Article 3 of Protocol No. 1 does not specify or limit the
aims which a restriction must be intended to serve, and it accepts
that the measure complained of is calculated to prevent excessive and
debilitating parliamentary fragmentation and thus strengthen
governmental stability, regard being had in particular to the period
of instability Turkey went through in the 1970s (see paragraph 16
above).
- As
regards the proportionality of the measure, the Court must examine
this question in the light of the criteria established in its
case-law and take due account of the political and historical context
in Turkey, without losing sight of the fact that rules that would be
unacceptable in the context of one system may be justified in the
context of another.
- The
Government argued that the measure was proportionate and was largely
a matter which fell within their margin of appreciation. They
submitted in particular that the applicants could have been elected
if they had been independent candidates or if DEHAP had formed a
coalition with larger parties before the election.
- Regarding
the argument grounded on the possibility of standing as an
independent candidate, the Court emphasises the irreplaceable
contribution made by parties to political debate, in which they can
be distinguished from other political actors such as independent
candidates, who in general are locally based. In representative
democracies political parties represent the different shades of
opinion to be found within a country’s population, thus
contributing to “the free expression of the opinion of the
people” (see, in particular, United Communist Party of
Turkey and Others, cited above, §§ 44 and 45).
- As
regards the possibility of forming a coalition with other political
parties with the aim of getting over the 10% hurdle, it should be
noted that section 16 of Law no. 2839 prevents parties from
presenting joint lists and from participating in parliamentary
elections by forming perfectly legal coalitions (see paragraph 26
above). Although in the past some small groupings did gain access to
the National Assembly under the banner of larger parties (see
paragraph 18 above), it must not be forgotten that the sole aim of
these provisional alliances was to circumvent that statutory
prohibition and that they merely illustrate a weak point in the
Turkish electoral system.
- Emphasising
in that connection the crucial role played in a representative
democracy by parliament, which is the main instrument of democratic
control and political responsibility, and must reflect as faithfully
as possible the desire for a “truly democratic political
regime”, the Court observes that after the elections of 3
November 2002 the electoral system concerned, which has a high
threshold without any possibility of a counterbalancing adjustment,
produced in Turkey the least representative parliament since the
introduction of the multi-party system in 1946 (see paragraph 13
above). In concrete terms, 45.3% of the electorate (about
14.5 million voters) is completely unrepresented in parliament.
- However,
an analysis of the results of the parliamentary elections held since
the adoption of the threshold (see paragraphs 14 and 17 20
above) shows that it cannot as such block the emergence of political
alternatives within society. Equally, the Court notes with interest
the Government’s argument that the threshold is intended to
give small groupings the opportunity to establish themselves
nationally and thus form part of a national political project.
- It
should also be pointed out that Article 67 § 6 of the
Constitution (see paragraph 22 above) requires electoral laws to
strike a balance between the principles of fair representation and
governmental stability. In its judgment of 18 November 1995 the
Constitutional Court examined the rationale for the existence of the
threshold as a corrective counterbalance to the general principle of
proportionality whereby excessive and debilitating parliamentary
fragmentation could be avoided. While accepting that thresholds
restricted “the right to vote and to be elected”, it
considered them acceptable provided that they did not exceed normal
limits. Consequently, it held that the 10% threshold was compatible
with the constitutional principles concerned (see paragraphs 29 30
above).
- Admittedly,
in view of the extreme diversity of electoral systems adopted by the
Contracting States, and taking into account the fact that many
countries using one or other variant of proportional representation
have national thresholds for election to parliament (see paragraphs
35 39 above), the Court must accept that in the present case the
Turkish authorities (both judicial and legislative) – but also
Turkish politicians – are best placed to assess the choice of
an appropriate electoral system, and it cannot propose an ideal
solution which would correct the shortcomings of the Turkish
electoral system. The fact remains, however, that the 10% national
threshold applied in Turkey appears to be the highest in comparison
with the thresholds adopted in other European systems.
- Consequently,
while noting that it would be desirable for the threshold complained
of to be lowered and/or for corrective counterbalances to be
introduced to ensure optimal representation of the various political
tendencies without sacrificing the objective sought (the
establishment of stable parliamentary majorities), the Court
considers that it is important in this area to leave sufficient
latitude to the national decision-makers. In that connection, it also
attaches importance to the fact that the electoral system, including
the threshold in question, is the subject of much debate within
Turkish society and that numerous proposals of ways to correct the
threshold’s effects are being made both in parliament and among
leading figures of civil society (see paragraph 21 above). What is
more, as early as 1995 the Constitutional Court stressed that the
constitutional principles of fair representation and governmental
stability necessarily had to be combined in such a way as to balance
and complement each other (see paragraphs 29 and 30 above).
- In
the light of the above conclusions, the Court does not consider that
Turkey has overstepped its wide margin of appreciation with regard to
Article 3 of Protocol No. 1, notwithstanding the high level of
the threshold complained of.
- Accordingly,
there has been no violation of Article 3 of Protocol No. 1.
FOR THESE REASONS, THE COURT
Holds by five votes to two that there has been no violation
of Article 1 of Protocol No. 1.
Done in French, and notified in writing on 30 January 2007 pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of Mr
Cabral Barreto and Mrs Mularoni is annexed to this judgment.
J.-P.C.
S.D.
JOINT DISSENTING OPINION OF JUDGES
CABRAL BARRETO AND
MULARONI
(Translation)
We
cannot agree with the majority’s finding that there has been no
violation of Article 3 of Protocol No. 1.
We
consider it useful to summarise the general principles applied in the
case-law of the Convention institutions on that provision, which are
recapitulated in paragraphs 57 to 65 of the judgment:
(1) Article
3 of Protocol No. 1 guarantees individual rights, including the right
to vote and the right to stand for election;
(2) the
rights guaranteed by Article 3 of Protocol No. 1 are crucial to
establishing and maintaining the foundations of a meaningful
democracy governed by the rule of law;
(3) Contracting
States must be allowed a margin of appreciation in this matter, at
least so long as the chosen system provides for conditions which will
ensure the free expression of the opinion of the people in the choice
of the legislature;
(4) 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.
It is
therefore surely not for the Court to say whether one electoral
system is better than another, seeing that any electoral system has
advantages and disadvantages, that there is no “perfect”
system and that nobody can avoid the phenomenon of “wasted
votes”. However, the Court has a duty, in our opinion, to
determine in the last resort whether the conditions imposed on the
exercise of the right concerned satisfy the requirements of our
case-law (see, among other authorities, Mathieu-Mohin and Clerfayt
v. Belgium, judgment of 2 March 1987, Series A no. 113). In our
view that means that we should consider the electoral system as a
whole.
We
are perfectly aware that many countries which have adopted
proportional representation systems have at the same time laid down
thresholds for the election of political parties to parliament, in
order to ensure governability. We acknowledge without hesitation that
this is a legitimate aim. However, we consider that a problem can
arise from the proportionality point of view when the threshold
concerned is too high.
All
previous cases about electoral thresholds brought to the attention of
the Strasbourg institutions have concerned thresholds at a level
generally accepted in Europe, that is thresholds of about 5%; it is
regrettable that the
majority avoided saying that in the judgment. In the only case of
this kind examined by the Court (Federación nacionalista
Canaria v. Spain (dec.), no. 56618/00, ECHR 2001 VI),
the Court was at pains to emphasise:
“[T]he second paragraph of the first transitional
provision of the Canary Islands’ Statute of Autonomy ... lays
down two alternative conditions: either at least 30% of all valid
votes must be obtained in an individual constituency or at least 6%
of all valid votes must be obtained in the Autonomous Community as a
whole. [The Court] considers that a system of that kind, far from
hindering election candidates such as those put forward by the
applicant federation, affords smaller political groups a certain
degree of protection.”
In
Turkey the electoral threshold is 10% nationally. That threshold is
considered to be manifestly excessive by the Parliamentary Assembly
of the Council of Europe, which in Resolution 1380 (2004) invited
Turkey to lower it. That might be sufficient ground for thinking that
there is a serious problem under Article 3 of Protocol No. 1.
But
as Article 3 of Protocol No. 1 does not impose specific conditions we
consider it important to take the Turkish electoral system as a
whole.
We
note that this system, which sets a very high national threshold for
the election of a political party to parliamentary seats, has no
corrective counterbalances.
The
Government put forward the following two arguments in seeking to
persuade the Court that, although the 10% threshold was high in
relation to the thresholds generally adopted, the system as a whole
was “proportionate”:
(a) the
applicants could have been elected if they had been independent
candidates;
(b) the
applicants could have been elected if DEHAP had entered into a
coalition before the election with the larger parties.
On
both points we fully share the considerations expressed by the
majority in paragraphs 71 to 73 of the judgment: neither argument is
persuasive, and the second is even incorrect.
Moreover,
at the hearing, the applicants’ representative mentioned a bill
currently the subject of political debate in Turkey which is intended
to do away in future with the possibility of standing as an
independent candidate in political elections. On that point the
Government’s representative did not contradict the applicant’s
representative: it is therefore quite possible that in future the
Turkish electoral system will become even more restrictive as regards
the possibility of gaining a seat in parliament.
It
would admittedly be naïve to take the view that the result of
the 2002 election, and in particular the fact that 45.3% of the votes
cast were not reflected in the composition of the National Assembly,
was solely due to the electoral system: there is no doubt that the
electorate wanted to send a clear signal to the parties which had
been in the power in the previous parliament. The fact remains,
however, that the electoral threshold – twice as high as the
European average – and the lack of corrective counterbalances
do not help to ensure “the free expression of the opinion of
the people in the choice of the legislature”. In addition, the
current system does not permit political parties which are very
strong at regional level but less so nationally to win seats in
parliament. In a large country we consider it very regrettable to
prevent political parties which represent millions of voters from
entering the national legislature.
One
could argue that in majority-vote systems the distribution of seats
in relation to the results obtained may sometimes be much more
unfavourable than in a proportional representation system which has
an electoral threshold (in the present case, a high one).
Nevertheless, in majority-vote systems, in principle, all political
parties of any importance at national or regional level are
represented in parliament, and for us that is decisive for the
purposes of Article 3 of Protocol No. 1.
Like
the majority, and in accordance with the case-law of the Convention
institutions, we consider that in this area States have a very wide
margin of appreciation; however, we take the view that in the present
case that margin of appreciation was exceeded and that the degree of
latitude which the majority have given to the respondent State is
excessive.
We
remain convinced that this case would warrant examination by the
Grand Chamber, as the issues it raises are serious and new.
In
our view, the Turkish electoral system, which lays down a national
threshold of 10% without any corrective counterbalances, raises such
a problem under Article 3 of Protocol No. 1 that there has been a
violation of that provision.
Even
following the finding of a violation the national legislature would
still have a wide margin of appreciation to determine how to amend
the electoral legislation to be applied in future elections in the
way it judged best for Turkey, while at the same time ensuring better
“the free expression of the opinion of the people in the choice
of the legislature”.
