Yumak and Sadak v. Turkey (10226/03)
| Date | 20080708 |
|---|---|
| Article | Prot. I |
| Decision | violation |
GRAND CHAMBER JUDGMENT YUMAK AND SADAK v. TURKEY
The European Court of Human Rights has today delivered in public its Grand Chamber judgment1 in the case of Yumak and Sadak v. Turkey (application no. 10226/03).
The Court held by thirteen votes to four that there had been no violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights.
1. Principal facts
Mehmet Yumak and Resul Sadak are Turkish nationals who were born in 1962 and 1959 respectively and live in Şırnak (Turkey).
The applicants complained that they had not been elected to Parliament in 2002 because of the electoral threshold of 10% imposed nationally.
The applicants stood in the parliamentary elections of November 2002 as candidates for the political party DEHAP (Democratic People’s Party) in the province of Şırnak. As a result of the ballot, DEHAP obtained approximately 45.95% of the vote (47,449 votes) in Şırnak province, but did not secure 10% of the vote nationally. However, the applicants were not elected, in accordance with section 33 of Law no. 2839 on the election of members of the National Assembly, which states that “parties may not win seats unless they obtain, nationally, more than 10% of the votes validly cast”. Consequently, of the three parliamentary seats allotted to Şırnak province, two were filled by the AKP (Justice and Development Party), which obtained 14.05% of the vote (14,460 votes), and the third by an independent candidate, Mr Tatar, who obtained 9.69% of the vote (9,914 votes).
Of the 18 parties which had taken part in the elections, only two succeeded in passing the 10% threshold and thus obtaining seats in Parliament. One of them, which had polled 34.26% of the votes cast, won 66% of the seats, while the other obtained 33% of the seats, having polled 19.4% of the votes. Nine independent candidates were also elected.
The National Assembly which emerged from the elections was the least representative since the multi-party system was first introduced. The proportion of voters not represented reached approximately 45% and the abstention rate exceeded 20%. To explain this lack of representativeness, some commentators referred to the cumulative effect of a number of factors over and above the high national threshold, such as the protest-vote phenomenon linked to the economic and political crises forming the background to the elections.
In the parliamentary elections of July 2007, political parties used two electoral strategies to circumvent the national threshold, one being to take part in the poll under the banner of a different party, the other to put candidates forward as independents (to whom the threshold does not apply). Thus, 13 members of parliament were elected on behalf of another party and then resigned, rejoining their original party. There was also an increase in the number of independent candidates elected to Parliament.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 1 March 2003 and declared partly admissible on 9 May 2006. A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 5 September 2006. In a Chamber judgment of 30 January 2007 the Court held by five votes to two that there had been no violation of Article 3 of Protocol No. 1.
On 9 July 2007 a request by the applicants for the case to be referred to the Grand Chamber under Article 432 of the Convention was accepted.
Minority Rights Group International, a non-governmental organisation based in London, was authorised to intervene in the written proceedings under Article 36 § 2 of the Convention (third-party intervention).
A hearing was held in public in the Human Rights Building on 21 November 2007.
Judgment was given by the Grand Chamber of 17 judges, composed as follows:
Boštjan M. Zupančič (Slovenian), President,
Peer Lorenzen (Danish),
Françoise Tulkens (Belgian),
Josep Casadevall (Andorran),
Rıza Türmen (Turkish),
Corneliu Bîrsan (Romanian),
Volodymyr Butkevych (Ukrainian),
Nina Vajić (Croatian),
Anatoly Kovler (Russian),
Vladimiro Zagrebelsky (Italian),
Elisabeth Steiner (Austrian),
Javier Borrego Borrego (Spanish),
Khanlar Hajiyev (Azerbaijani),
Renate Jaeger (German),
Ján Šikuta (Slovak),
Isabelle Berro-Lefèvre (Monegasque),
Päivi Hirvelä (Finnish), judges,
and also Vincent Berger, Jurisconsult.
3. Summary of the judgment3
Complaint
The applicants alleged that the electoral threshold of 10% imposed nationally 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 (right to free elections).
Decision of the Court
The Court considered that the electoral threshold of 10% imposed nationally for the representation of political parties in Parliament constituted interference with the applicants’ electoral rights. The threshold pursued the legitimate aim of avoiding excessive and debilitating parliamentary fragmentation and thus of strengthening governmental stability.
The Court observed that the national 10% threshold was the highest of all the thresholds applied in the member States of the Council of Europe. Only three other member States had opted for high thresholds (7% or 8%). A third of the States imposed a 5% threshold and 13 of them had chosen a lower figure.
The Court also attached importance to the views of the Council of Europe bodies which agreed that the level of the Turkish national threshold was exceptionally high and had called for it to be lowered.
It noted, however, that the effects of an electoral threshold could differ from one country to another and that the role played by thresholds varied in accordance with the level at which they were set and the party system in each country. A low threshold excluded only very small groupings, making it more difficult to form stable majorities, whereas in cases where the party system was highly fragmented a high threshold deprived a large proportion of voters of representation.
The variety of situations provided for in the member States’ electoral legislation illustrated the diversity of the possible options. It also showed that the Court could not assess a particular threshold without taking into account the electoral system of which it formed a part, although it could accept that a threshold of about 5% corresponded more closely to the member States’ common practice. However, any electoral system must be assessed in the light of the country’s political evolution. The Court therefore considered that it should examine the correctives and other safeguards in place in the Turkish system in order to assess their effects.
As regards the possibility of standing as an independent candidate, the Court emphasised the irreplaceable contribution made by parties to political debate. It noted, however, that this method was not ineffective in practice, as the 2007 elections had shown, and that the fact that independents were not required to reach any threshold had greatly facilitated the adoption of that electoral strategy. The other possibility was to form an electoral coalition with other political groups, a strategy which had produced tangible results, particularly in the 1991 and 2007 elections.
Admittedly, since about 14.5 million votes had been cast in the November 2002 elections for candidates who were not elected to Parliament, these electoral strategies could have only a limited effect. However, the 2002 elections had taken place in a crisis climate with many different causes (economic and political crises, earthquakes), and the representation deficit observed after those elections could have been partly contextual in origin and not solely due to the high national threshold. The Court noted that this was the only occasion since 1983 when the proportion of votes for candidates not elected to Parliament had been so high.
Accordingly, the political parties affected by the threshold had managed in practice to develop strategies to attenuate some of its effects, although such strategies also ran counter to one of the threshold’s declared aims, that of avoiding parliamentary fragmentation.
The Court also attached importance to the role of the Constitutional Court. Its efforts in seeking to prevent any excessive effects of the threshold by striking a balance between the principles of fair representation and governmental stability provided a guarantee designed to stop the threshold impairing the essence of the right enshrined in Article 3 of Protocol No. 1.
In conclusion, the Court considered that in general a 10% electoral threshold appeared excessive, and concurred with the views of the Council of Europe bodies which had recommended lowering it. Such a threshold compelled political parties to make use of stratagems which did not contribute to the transparency of the electoral process.
In the present case, however, the Court was not persuaded that, having regard to the specific political context of the elections in question, and to the correctives and other safeguards which had limited its effects in practice, the impugned 10% threshold had had the effect of impairing the essence of the applicants’ rights under Article 3 of Protocol No. 1. There had therefore been no violation of that provision.
Judges Tulkens, Vajić, Jaeger and Šikuta expressed a joint dissenting opinion, which is annexed to the judgment.