JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS AND SAJÓ

(Translation)

1. We do not share the view of the majority that there has been no violation in this case of Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1.

2. We would like to make clear at the outset that we have no intention of discussing the issue of State funding for political parties, a matter which is not within our competence. The Convention does not guarantee a right to such funding. But where there exists a system of public funding, which is bound to have an impact on the elections themselves, it must be applied in a non ‑ discriminatory manner. Our only concern therefore relates, from the standpoint of Article 14 of the Convention, to the issue of equality in the electoral process and, accordingly, in the right to free elections and the right to free expression of the opinion of the people in the choice of the legislature, as guaranteed by Article 3 of Protocol No. 1. In that regard the judgment aptly points out that this provision enshrines a characteristic principle of an effective political democracy and is accordingly of “prime importance” in the Convention system (see paragraph 27 of the judgment). These assertions must be taken seriously.

3. In the instant case the Court acknowledges that additional section 1 of Law no. 2820 on political parties, which makes State financial assistance to new political parties not yet represented in Parliament conditional on their having obtained at least 7% of the votes cast in the preceding election, placed the ÖDP at a disadvantage compared with other political parties during the 1999, 2002 and 2007 election campaigns. It was therefore subjected to a difference in treatment (see paragraph 35 of the judgment).

4. According to the Court’s well-established case-law, discrimination consists in treating differently, without an objective and reasonable justification, persons in similar situations. It is therefore for the Government to adduce evidence to show that the difference in treatment was justified and was not discriminatory in its effects.

5. The majority rightly points out that, as in the rest of the world, funding for political parties is aimed at preventing corruption and avoiding excessive reliance by parties on private donors. This system is intended to strengthen political pluralism and contributes to the proper functioning of democratic institutions (see paragraph 37 of the judgment). However, a minimum of electoral support is required. In the Council of Europe member States, the minimum level of support which a party must attain in order to qualify for public funding varies between 0.5% and 5% of the votes cast in the preceding election.

6. The 7% threshold which triggers eligibility for State funding in Turkey is therefore particularly high and is in fact the highest in Europe. This inevitably results in the establishment of virtual “monopolies” or dominant positions for certain parties and in the inability of other parties to raise their profile and thus contest the elections on an equal footing. The presence of large parties is thus (artificially) boosted and multiplied to the detriment of the other parties, and the current system of funding perpetuates that imbalance. Moreover, the Government did not dispute the existence of this effect which, in our view, is damaging to small parties and, accordingly, to political pluralism.

7. Of course, the Court cannot substitute its own assessment for that of the national authorities when it comes to determining the minimum level of electoral support required. However, it cannot merely content itself with criteria which are objective in appearance only and which do not take into consideration the essential requirement that minorities must always have access to equal opportunities in a pluralist society. It is true that, in the instant case, the statutory provision in question may appear neutral; however, in the context of political debate, pluralism ranks as a Convention principle. In that regard the minimum level of support required may constitute discrimination.

8. Whereas in the Court’s judgment in Yumak and Sadak v. Turkey ([GC], no. 10226/03, ECHR 2008) of 8 July 2008 concerning the 10% electoral threshold the reason accepted by the Court as justification for the difference in treatment was governmental stability (§ 125), this could clearly not be invoked in the present case. Here, the only arguments advanced were practical considerations which were patently not sufficient to justify discrimination.

9. In examining the proportionality of the impugned difference in treatment, the Court puts itself in the place of the national authorities and conducts its own analysis of the applicant party’s position. It considers that the ÖDP did not succeed in demonstrating that the level of support it enjoyed made it representative of a significant portion of the Turkish electorate. But this is not the Court’s role. Its role is to ascertain and ensure that the national authorities carried out a correct and appropriate assessment as to whether the exclusion of the applicant party was in conformity with the Convention. That is missing here, which is what leads us to consider that there has been a violation of the Convention.