YUMAK AND SADAK v. TURKEY JUDGMENT
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77. In the first place, the applicants considered that, as the 10%
threshold prevented a large part of the population from expressing its choice
regarding its parliamentary representation, it quite evidently constituted a
serious interference with the right to participation and served no legitimate
aim for the purposes of Article 3 of Protocol No. 1.
78. In that connection, the applicants challenged the argument that the
measure complained of was intended to strengthen parliamentary stability.
They asserted that the military authorities, who had taken power in the 1980
coup d’état, placed the full blame for the social and political agitation in
Turkey between 1970 and 1980, and the governmental instability it had led
to, on the electoral system then in force. In their opinion it was artificial to
establish a causal link between the threshold and the political situation in
Turkey in the 1970s, as assessed in the Chamber’s judgment.
79. The applicants laid emphasis on the fact that two of the four
elections in which proportional representation was used without recourse to
the electoral threshold (those of 1965 and 1969) had produced single-party
governments; the other two (those of 1973 and 1977) had led to coalition
governments.
80. Moreover, though it was not excluded that lowering or abolishing
the national electoral threshold would lead to a coalition government, such
an outcome was not necessarily synonymous with governmental instability.
Coalition governments were sometimes more stable than single-party
governments.
81. The applicants contended that it was difficult to defend the view that
the exceptional measure in question strengthened representative democracy.
The Council of Europe had been created to strengthen democracy and
democratic values. Although the Contracting States certainly had a broad
margin of appreciation in the matter, they could not rely on that latitude –
without taking into account the right to fair representation – to an unlimited
or disproportionate extent, namely by excluding from the political life of the
country a particular discrete segment of the population.
82. 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. In that
connection, the applicants pointed out that 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
4,500,000 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 had led
to a “crisis of representation”, since 45.3% of the votes – that is, about
14,500,000 votes – had not been taken into consideration and were not
reflected in the composition of Parliament.