SECOND SECTION

DECISION

Application no . 16576/15 Mansur YAVAÅž against Turkey

The European Court of Human Rights (Second Section), sitting on 30 August 2016 as a Committee composed of:

Ksenija Turković, President, Jon Fridrik Kjølbro, Georges Ravarani, judges,

and Hasan Bak ı rc ı , Deputy Section Registrar ,

Having regard to the above application lodged on 1 April 2015 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mansur Yavaş, is a Turkish national who was born in 1955 and lives in Ankara. He was represented before the Court by Mr H.H. Güllü, a lawyer practising in Ankara.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ran in the municipal elections of 30 March 2014 in Turkey as candidate for the People ’ s Republican Party ( Cumhuriyet Halk Partisi – “the CHP”) for the office of mayor of Ankara Metropolitan Municipality.

2. The results announced by the National Electoral Commission ( Yüksek Seçim Kurulu – “the YSK”), showed that the applicant got 1,385,038 votes while one of his opponents, Mr İ.M.G., a member of the Justice and Development Party ( Adalet ve Kalkınma Partisi – “the AKP”) obtained 1,416,770 votes.

3. On 6 April 2014 the CHP filed a complaint about the election results with the YSK and asked for a re-count because of electoral discrepancies and fraud. Its allegations included:

(a) that the written records of 2,098 of the total 12,234 ballot boxes, mostly where the AKP candidate had been the winner, had lacked official stamps with unique serial numbers;

(b) the executive authority had not been impartial because the then Deputy Prime Minister had visited the centre where the votes were being collected and counted during election night;

(c) the Minister of Justice had held a joint news conference with the AKP candidate before the results were announced and expressed his support for him;

(d) a sudden blackout and power cut in certain districts of Ankara had occurred on election night while the whole nation had been watching a live broadcast on the vote count and at a time when the applicant ’ s party had been leading;

(e) the members of the ballot box committees had failed to perform their duties properly, for example they had not stamped the ballots correctly, which had resulted in some votes being declared invalid, and;

(f) the website of the only independent news agency covering the elections and providing real-time updates on the results had been hacked, leaving the state-owned news agency as the only available source of information. It, in turn, had stopped updating its news for four hours when the applicant ’ s party had been leading.

4. On 9 April 2014 the YSK rejected the complaints and stated, inter alia , that the party had not submitted any documentary or other evidence to prove its allegations. According to the YSK, the lack of official stamps should be considered as a clerical error which could always be corrected later on. It further held that the counting of votes had been done correctly and that the number of invalid votes had not been sufficient to change the election result.

5. On 12 June 2014 the applicant lodged an application with the Constitutional Court and alleged that his rights under Articles 6 and 10 of the Convention and Article 3 of Protocol No. 1 to the Convention had been violated.

6. On 23 July 2014 the Constitutional Court decided to examine the complaint solely under Article 3 of Protocol No. 1 and declared the application inadmissible as being incompatible rationae materiae with the provisions of the Convention.

B. Relevant domestic law

7. Article 7 of the Constitution provides:

“Legislative power is vested in the Turkish Grand National Assembly on behalf of the Turkish Nation. This power cannot be delegated.”

8. Article 67 of the Constitution, as amended on 23 July 1995 and 17 October 2001, 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.”

COMPLAINTS

9. The applicant complained under Article 6 of the Convention that his right to a fair trial had been violated because his complaints of irregularities and fraud in the municipal elections had been arbitrarily rejected by the relevant bodies, namely the electoral body and the Constitutional Court.

10. He further argued that the electoral fraud had not been corrected by the Constitutional Court because the latter had adopted a restrictive interpretation of the term “elections” in Article 67 of the Constitution and had declared his complaints concerning the 2014 municipal elections inadmissible as being incompatible ratione materiae with the provisions of the Convention.

THE LAW

A. Alleged unfairness of the proceedings

11. The applicant complained that his complaints concerning the electoral fraud and irregularities in the election process had not been duly examined by the electoral body and the Constitutional Court. In that respect, he alleged a violation of his right to a fair trial under Article 6 of the Convention. Article 6 provides, in so far as relevant, as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

12. The Court observes that the proceedings in which the complaints were examined concerned the validity of municipal elections in Ankara and subsequently the applicant ’ s right to occupy the post of mayor. Such proceedings are related to a dispute on political rights and not to the civil rights which are within the scope of Article 6 of the Convention (see, in the context of parliamentary elections, Pierre-Bloch v. France , 21 October 1997, § 50, Reports of Judgments and Decisions 1997 ‑ VI; in the context of local elections see Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000 ‑ I; and in the context of both parliamentary and municipal elections see Valentin Gorizdra v. Moldova (dec.) no. 53180/99, 2 July 2002).

13. Hence, Article 6 does not apply to the proceedings complained of.

14. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

B. Failure of the national bodies to correct alleged electoral fraud

15. The applicant complained that the alleged electoral fraud had not been corrected by the electoral body and the Constitutional Court. He maintained, in particular, that the Constitutional Court, by interpreting the term “elections” in Article 67 of the Constitution narrowly and declaring his complaint related to the 2014 municipal elections inadmissible had violated his rights under Articles 6 and 53 of the Convention.

16. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for instance, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04 , § 43, ECHR 2012 ). It considers that this part of the applicant ’ s complaint relates mainly to a dispute arising out of the 2014 municipal elections. The complaint is therefore to be examined under Article 3 of Protocol No. 1 to the Convention alone, which provides as follows:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

17. Article 3 of Protocol No. 1 protects the right of the people to choose the legislature by means of free elections (see Booth-Clibborn and Others v. the United Kingdom , no. 11391/85, Commission decision of 5 July 1985, Decisions and Reports (DR) 43, p. 236). The word “legislature” does not necessarily mean the national parliament: it has to be interpreted in the light of the constitutional structure of the State in question (see Mathieu-Mohin and Clerfayt v. Belgium , 2 March 1987, § 53, Series A no. 113, and Matthews v. the United Kingdom [GC], no. 24833/94, § 40, ECHR 1999-I).

18. According to the Court ’ s established case-law, municipal elections for organs which do not form part of the legislature in the country concerned fall outside the scope of Article 3 of Protocol No. 1 ( X. v. the United Kingdom , no. 5155/71, Commission decision of 12 July 1976, DR 6, p. 13; Cherepkov , cited above ; Malarde v. France (dec.), no. 46813/99, 5 September 2000; Salleras Llinares v. Spain (dec.), no. 52226/99, ECHR 2000-XI; Valentin Gorizdra , cited above ; Santoro v. Italy, no. 36681/97, 16 January 2003; and Mółka v. Poland (dec.), no. 56550/00, ECHR 2006 ‑ IV).

19. The Court must therefore determine whether municipalities can be regarded as constituting part of the legislature of Turkey. In this connection, the Court observes that in Uçar and others v. Turkey ((dec.), no. 4692/09, 24 June 2014) it held:

“... the Constitution of Turkey confers the exercise of legislative power on the Turkish Grand National Assembly, that is, the Parliament (see Article 7 of the Constitution). Moreover, municipalities in Turkey are the repositories of powers of an administrative nature concerning the organisation and provision of local services. ... Thus, they do not exercise legislative power within the meaning of the Constitution of Turkey. The Court therefore concludes that municipalities do not form part of the legislature of Turkey”.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 22 September 2016 .

Hasan Bakırcı Ksenija Turković              Deputy Registrar President