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6 YUMAK AND SADAK v. TURKEY JUDGMENT II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. The constitutional and legislative context 1. The Constitution 27. Article 67 of the Constitution, as amended on 23 July 1995, provides: “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 referenda in accordance with the rules laid down by law. Elections and referenda 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 referenda. 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.” 28. 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.” 29. Under the terms of Article 95 of the Constitution and section 22 of Law no. 2820 on political parties, a political party which has at least twenty MPs may form a parliamentary group.

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Yumak & Sadak v. Turkey

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Description: The applicants in this case allege that the ten percent threshold for entering Parliament directly interferes with the freedom of expression guaranteed in Article 3 of Protocol 1. Both applicants sought election as members of the People’s Democratic Party during the 2002 parliamentary elections. Neither applicants was successfully elected. The People’s Democratic Party was a newly formed political block in September of 2002. All other political blocks existed since before 1991. In Sirnak, the People’s Democratic Party received 45.95% percent of the vote, but failed to meet the national ten percent requirement. The Sirnak seats then went to a member of the Justice and Development Party that polled 14.05% and an independent who polled 9.69%. The imposition of the ten percent threshold disqualified all but two political parties from gaining seats in the legislature. A similar fact pattern occurred during the 2007 elections. The first hearing on the merits of the case was held on September 5, 2006 and found no violation of Article 3 of Protocol 1. On April 21, 2007 the applicants asked the Grand Chamber to hear the case. The court determined that the domestic legislative framework sought to set forth a scheme of obtaining office through elections. That scheme, however, must be arbitrary and serves the proportionality goal it seeks to accomplish. First, the court stated that the law was not arbitrary because all political parties that fail to meet the ten percent threshold are prohibited from obtaining political office and many political parties were prohibited from doing so since its enactment. Second, although thresholds are common across Europe, Turkey remains among the three highest. The court ultimately stated that the ten percent threshold should be lowered because it is a high level but the court was not persuaded that in this political context the threshold resulted in freedom of expression or impaired rights of candidates and political parties. The court founds no violation of Article 3 of Protocol No. 1.

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French

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Latitude: 39.889866476023506

Longitude: 32.77150759681381

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Author(s): European Court of Human Rights

Date: Jul 8, 2018

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CASE OF YUMAK AND SADAK v. TURKEY.pdf
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AFFAIRE YUMAK ET SADAK c. TURQUIE.pdf
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Election Judgments - IFES

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Yumak & Sadak v. Turkey

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