22
YUMAK AND SADAK v. TURKEY JUDGMENT
Turkey, in breach of the Court’s settled case-law. Accordingly, the free
expression of the will of the majority of the electorate in the region
concerned had been deliberately hindered.
90. More concretely, the applicants submitted that on account of the
application of the electoral threshold in the 2002 parliamentary elections
DEHAP, which was known for its interest in and commitment to the
Kurdish question, had not obtained a single seat in Parliament although it
had achieved very high scores in a number of constituencies. In their
opinion it could not be considered that the parliamentary elections of
22 July 2007 had solved the problem, even though the DTP, the successor to
DEHAP, had presented independent candidates. The fact that political
parties supported by Kurds had presented independent candidates was in
itself a handicap.
91. Consequently, in the applicants’ submission, the fact that they were
not elected to the National Assembly on account of the national 10%
threshold when in the parliamentary elections of 3 November 2002 the
DEHAP list – to which they belonged – had obtained 45.95% of the votes
cast in the constituency of Şırnak was incompatible with Article 3 of
Protocol No. 1. They argued that the excessively high threshold was in
conflict with the object and purpose of the provision concerned, which was
to guarantee the right to the free expression of the opinion of the people in
the choice of the legislature. By depriving a whole segment of the
population of the possibility of one day being represented in Parliament by a
party which voiced its opinions, the national threshold removed the very
essence of that right. Such a serious and systematic interference with the
rights of a whole group, unique as it was among all European electoral
systems, could not be justified by the margin of appreciation left to the State
and therefore manifestly constituted a violation of the Convention.
2. The Government
92. The Government asked the Grand Chamber to endorse the
Chamber’s finding that there had been no violation of Article 3 of Protocol
No. 1.
93. They submitted that the 10% threshold was calculated to ensure the
country’s political stability by preventing excessive fragmentation of the
composition of Parliament, and to strengthen democracy and political
parties by encouraging the latter to propose policies accepted more or less
generally throughout the country. The threshold did not infringe the
fundamental principles of democracy such as pluralism. On the contrary,
facilitating the election of independent candidates by exempting them from
the 10% threshold made it possible for pluralism to put down deep roots in
society. In that connection, the Government emphasised that between 1961
and 1980, when Turkey did not apply any threshold, there had been twenty
changes of government in nineteen years, whereas between 1983 and 2007,