38 YUMAK AND SADAK v. TURKEY JUDGMENT 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 105-15 of the judgment). 1. In a proportional system the requirement of some kind of threshold cannot in itself be held to be contrary to the requirements of Article 3 of Protocol No. 1, in that it encourages sufficiently representative currents of thought and makes it possible to avoid an excessive fragmentation of Parliament. However, there is no doubt that the current system in Turkey of a 10% threshold set up in 1980 – which is the highest in Europe – deprives a large proportion of the population of the possibility of being represented in Parliament. 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 4,500,000 votes), 0.5% (about 140,000 votes), 14% (about 4,000,000 votes) and 18.3% (about 6,000,000 votes). The results of the 2002 election led to a “crisis of representation”, since 45.3% of the votes – about 14,500,000 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). 2. The Government argued that the 10% electoral threshold served the legitimate aim of ensuring governmental stability. A proportional voting system in Turkey without this threshold, it was submitted, would not lead to stable majorities. The Court endorsed that argument without analysing it or 1. R. Zimbron, “The Unappreciated Margin: Turkish Electoral Politics Before the European Court of Human Rights”, 49 Harvard International Law Journal Online 10 (2007), http://www.harvardilj.org/online/125, p. 18. 2. OSCE, Office for Democratic Institutions and Human Rights, Assessment Report: Republic of Turkey Parliamentary Elections (2002), 4 December 2002.