24
YUMAK AND SADAK v. TURKEY JUDGMENT
2002 elections. Before the 2007 elections, therefore, it had collaborated with
the CHP, its rival, managing in that way to obtain thirteen seats on that
party’s lists. The MPs elected as a result then left the CHP and rejoined their
first party, the DSP. In the 1991 elections the HEP, which was the first
avatar of the group which ultimately became the applicants’ party, had also
managed to get some of its candidates elected from the lists of another
party.
98. The two possibilities which had been put into practice in the 2007
elections – standing as an independent candidate or collaborating with
another party with a view to being elected from its lists – were very concrete
examples of the existing correctives. Recourse to these correctives in the
latest elections had made it possible to offer 85% of all voters some
representation in Parliament. The Government submitted that if these
options had been used in 2002, the results would have been similar.
99. In their referral request the applicants had asserted that the
10% threshold had been kept with a view to excluding from Parliament their
political party and its successor, the DTP, in 2002 and 2007 respectively.
But the results of the 2007 elections proved that that allegation was without
foundation. The DTP had a parliamentary group of twenty MPs, and on that
account its participation in the next elections was guaranteed by virtue of
section 36 of Law no. 2820 on political parties, even if it did not satisfy the
condition of national implantation. Section 36 provided that political parties
which had a parliamentary group could take part in the following elections
even if they did not satisfy the national implantation condition.
100. The Government rejected the applicants’ argument that the
judgment given by the Chamber on 30 January 2007 permitted States
thenceforth to raise the participation threshold in accordance with opinion
poll results. The Chamber’s reasoning clearly indicated that it had properly
taken into account the existing alternatives to the threshold and the review
carried out by the Constitutional Court on the basis of the principles of “fair
representation” and “governmental stability”, which had to complement
each other. In the light of the possible alternatives, the Chamber had also
held that the free expression of the opinion of the people had not been
hindered and that the Government had not overstepped their margin of
appreciation. The results of the 2007 elections clearly confirmed the
findings of the Chamber judgment.
101. As regards the results of the 2007 poll, given that 85% of all voters
in the country were now represented in Parliament, the Government
considered that the principle of fair representation had been respected
satisfactorily. Furthermore, in the smaller provinces, particularly those
where most of the DTP’s independent candidates were standing on 22 July
2007, the chances of being elected were higher than in larger provinces or
constituencies. For example, to be elected in the first Istanbul constituency a
candidate had to obtain about 111,750 votes, whereas in Hakkari province