JOINT DISSENTING OPINION OF JUDGES CABRAL BARRETO AND MULARONI

(Translation)

We cannot agree with the majority ’ s finding that there has been no violation of Article 3 of Protocol No. 1.

We consider it useful to summarise the general principles applied in the case-law of the Convention institutions on that provision, which are recapitulated in paragraphs 57 to 65 of the judgment:

(1) Article 3 of Protocol No. 1 guarantees individual rights, including the right to vote and the right to stand for election;

(2) the rights guaranteed by Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of a meaningful democracy governed by the rule of law;

(3) Contracting States must be allowed a margin of appreciation in this matter, at least so long as the chosen system provides for conditions which will ensure the free expression of the opinion of the people in the choice of the legislature ;

(4) it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that limitations do not curtail the rights in question to such an extent as to impair their very essence, and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate.

It is therefore surely not for the Court to say whether one electoral system is better than another, seeing that any electoral system has advantages and disadvantages, that there is no “perfect” system and that nobody can avoid the phenomenon of “wasted votes”. However, the Court has a duty, in our opinion, to determine in the last resort whether the conditions imposed on the exercise of the right concerned satisfy the requirements of our case-law (see, among other authorities, Mathieu-Mohin and Clerfayt v. Belgium , judgment of 2 March 1987, Series A no. 113). In our view that means that we should consider the electoral system as a whole.

We are perfectly aware that many countries which have adopted proportional representation systems have at the same time laid down thresholds for the election of political parties to parliament, in order to ensure governability. We acknowledge without hesitation that this is a legitimate aim. However, we consider that a problem can arise from the proportionality point of view when the threshold concerned is too high.

All previous cases about electoral thresholds brought to the attention of the Strasbourg institutions have concerned thresholds at a level generally accepted in Europe, that is thresholds of about 5%; it is regrettable that the

majority avoided saying that in the judgment. In the only case of this kind examined by the Court ( Federación nacionalista Canaria v. Spain (dec.), no. 56618/00, ECHR 2001 ‑ VI ), the Court was at pains to emphasise:

“[T]he second paragraph of the first transitional provision of the Canary Islands ’ Statute of Autonomy ... lays down two alternative conditions: either at least 30% of all valid votes must be obtained in an individual constituency or at least 6% of all valid votes must be obtained in the Autonomous Community as a whole. [The Court] considers that a system of that kind, far from hindering election candidates such as those put forward by the applicant federation, affords smaller political groups a certain degree of protection.”

In Turkey the electoral threshold is 10 % nationally. That threshold is considered to be manifestly excessive by the Parliamentary Assembly of the Council of Europe, which in Resolution 1380 (2004) invited Turkey to lower it. That might be sufficient ground for thinking that there is a serious problem under Article 3 of Protocol No. 1.

But as Article 3 of Protocol No. 1 does not impose specific conditions we consider it important to take the Turkish electoral system as a whole.

We note that this system, which sets a very high national threshold for the election of a political party to parliamentary seats, has no corrective counterbalances.

The Government put forward the following two arguments in seeking to persuade the Court that, although the 10% threshold was high in relation to the thresholds generally adopted, the system as a whole was “proportionate”:

(a) the applicants could have been elected if they had been independent candidates;

(b) the applicants could have been elected if DEHAP had entered into a coalition before the election with the larger parties.

On both points we fully share the considerations expressed by the majority in paragraphs 71 to 73 of the judgment: neither argument is persuasive, and the second is even incorrect.

Moreover, at the hearing, the applicants ’ representative mentioned a bill currently the subject of political debate in Turkey which is intended to do away in future with the possibility of standing as an independent candidate in political elections. On that point the Government ’ s representative did not contradict the applicant ’ s representative: it is therefore quite possible that in future the Turkish electoral system will become even more restrictive as regards the possibility of gaining a seat in parliament.

It would admittedly be naïve to take the view that the result of the 2002 election, and in particular the fact that 45.3% of the votes cast were not reflected in the composition of the National Assembly, was solely due to the electoral system: there is no doubt that the electorate wanted to send a clear signal to the parties which had been in the power in the previous parliament. The fact remains, however, that the electoral threshold – twice as high as the European average – and the lack of corrective counterbalances do not help to ensure “the free expression of the opinion of the people in the choice of the legislature”. In addition, the current system does not permit political parties which are very strong at regional level but less so nationally to win seats in parliament. In a large country we consider it very regrettable to prevent political parties which represent millions of voters from entering the national legislature.

One could argue that in majority-vote systems the distribution of seats in relation to the results obtained may sometimes be much more unfavourable than in a proportional representation system which has an electoral threshold (in the present case, a high one). Nevertheless, in majority-vote systems, in principle, all political parties of any importance at national or regional level are represented in parliament, and for us that is decisive for the purposes of Article 3 of Protocol No. 1.

Like the majority, and in accordance with the case-law of the Convention institutions, we consider that in this area States have a very wide margin of appreciation; however, we take the view that in the present case that margin of appreciation was exceeded and that the degree of latitude which the majority have given to the respondent State is excessive.

We remain convinced that this case would warrant examination by the Grand Chamber, as the issues it raises are serious and new.

In our view, the Turkish electoral system, which lays down a national threshold of 10% without any corrective counterbalances, raises such a problem under Article 3 of Protocol No. 1 that there has been a violation of that provision.

Even following the finding of a violation the national legislature would still have a wide margin of appreciation to determine how to amend the electoral legislation to be applied in future elections in the way it judged best for Turkey, while at the same time ensuring better “the free expression of the opinion of the people in the choice of the legislature”.

[1] . For a detailed analysis of the results of the 2002 elections, see Elise Massicard , Les élections du 3 novembre 2002: Une recomposition de la vie politique turque ? , Istanbul , July 2003.