JOINT DISSENTING OPINION OF JUDGES TULKENS, VAJIĆ, JAEGER AND ŠIKUTA

( Translation )

We do not agree with the majority ’ s conclusion that there has been no violation of Article 3 of Protocol No. 1, although we take the same principles as our starting-point (paragraphs 105 - 15 of the judgment).

1. In a proportional system the requirement of some kind of threshold cannot in itself be held to be contrary to the requirements of Article 3 of Protocol No. 1, in that it encourages sufficiently representative currents of thought and makes it possible to avoid an excessive fragmentation of P arliament. However, there is no doubt that the c urrent system in Turkey of a 10 % threshold set up in 1980 – which is the highest in Europe – deprives a large proportion of the population of the possi bility of being represented in P arliament.

As established in the parliamentary elections of 1987, 1991, 1995 and 1999, the proportion of the votes cast in favour of parties not represented in P ar liament was, respectively, 19.4 % (about 4 , 5 00,000 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 led to a “crisis of representation”, since 45.3 % of the votes – about 14 , 5 00,000 votes – had not been taken into consideration and were not r eflected in the composition of P arliament [1] . Acco rding to an OSCE report, the 10 % national threshold in Turkey ’ s electoral system virtually eliminates the possibility of regional or minority parties entering the Turkish Grand National Assembly and distorts the essential purpose of a proportional system [2] . In fact, the high 10 % threshold tends to suppress parliamentary criticism and debate, which are the essence of representative democracy. And as the Court has repeatedly observed, there can be no democracy without pluralism (see Freedom and Democracy Party ( ÖZDEP ) v. Turkey [GC], no. 23885/94, § § 39 and 41 , ECHR 1999 ‑ VIII ).

2. The Government argued that the 10% electoral threshold served the legitimate aim of ensuring governmental stability. A proportional voting system in Turkey without this threshold, it was submitted, would not lead to stable majorities. The Court endorsed that argument without analysing it or

subjecting it to any criticism. Some have argued, however, that a study of the historical background in Turkey casts doubt on this objective, since under an electoral system without such a high threshold it was also possible for solid governments to be formed [3] . Conversely, such a threshold brings more polarisation than stability.

Moreover, in practice, smaller groups are now represented in P arliament by means of circumvention ( see point 4 below ). Thus the purpose of the law can no longer be considered to be the exclusion of smaller parties or groups from P arliament, as the only remaining effect seems to be that it weakens within the election process the chances of all smaller parties which are not sure to pass the threshold. They have either to find allies or disappear during elections by having their candidates stand as independents.

3. As regards the proportionality of the interference, the majority ’ s first argument is that the elections of 3 November 2002 took place in a crisis of tension caused by a number of different factors (ec onomic pressure, political crise s and earthquake s – see paragraph 141 of the judgment ). In other words, an exceptional solution was needed for an exceptional situation.

However, that argument – which at first sight appears reasonable – is rendered considerably less persuasive by the fact that it was not just in those elections of November 2002 that the high threshold of 10% was used. Firstly, the system was adopted much earlier , in 1983, and since then numerous political parties following extremely varied political lines have been unable to secure seats in P arliament, having failed to get over the threshold ( see paragraph 123 of the judgment ). Secondly, the threshold was also applied after the 2002 elections, during the parliamentary elections of 22 July 2007. It is true that reforms of the electoral system have been discussed, but to date an invisible hand seems to have prevented these from coming to fruition. In those circumstances, we consider that the argument which the majority found decisive, namely the specific context of the 2002 elections, is not relevant.

4. The majority ’ s second argument lies in the importance it attaches to what it calls “correctives and other safeguards” capable of limiting the effects of the 10 % electoral threshold, which the majority, in any event and in general terms, found to be excessive ( see paragraph 147 of the judgment ).

But what are the safeguards concerned? The Court itself acknowledges that they amount to “stratagems” which political parties are compelled to make use of and which do not contribute to the transparency of the electoral process ( ibid . ). A stratagem is literally a ruse, as in the phrase ruse de guerre . Can a democratic system which does not function properly be corrected by “stratagems” and thus made compatible with the Convention?

In concrete terms, Turkish political parties have developed electoral techniques to “by-pass” the obstacles; these include in particular putting up independent candidates supported by a party (but who immediately rejoin their original party once elected) and adding candidates from one party to the list of another party. The Court had no hesitation in finding that this was only a makeshift solution ( see paragraph 138 of the judgment ). It also drew attention to all the difficulties in such a system, inasmuch as these candidates are subject to a number of unfavourable restrictions and conditions compared with politic al parties (see, for instance, paragraph 35 of the judgment). The Court nevertheless accepted these “stratagems” on account of what was presented as their result in practice. In other words, the end justifie d the means.

Apart from the obvious problem of political morality that such a position raises, it seems to us to be logically difficult to accept, since the Court itself acknowledges that these “stratagems” run counter to the legitimate aim of fixing such a high threshold, namely preventing parliamentary fragmentation. Furthermore, these correctives and safeguards are exclusively the result of political considerations and agreements and there can be no certainty that they will remain available in the future. These practices, which are in any case themselves contrary to the Turkish Constitution and Turkish electoral leg islation (section 16 of Law no. 2839 on the election of members of the National Assembly), may be changed and disappear from one day to the next. That being the case, it is difficult to accept that such correctives may be described as safeguards for the purposes of the Convention. Lastly, the Court did not consider the detrimental effect of these techniques on the party system as such when parties have to seek and find protection from other parties for the purpose of slipping through the 10% threshold. In themselves, parties represent and unite different currents of thought. Any interference with their independent participation in elections curtails the free expression of the opinion of the people – whether the interference is direct or indirect. Certainly, this is the case when different parties form hidden alliances during the elections, by-passing the legislation in place as interpreted by the Constitutional Court ( see paragraph 42 of the judgment). To achieve such alliances, candidates from one party have to be accepted, even approved of , by another party, which undermines the independence of parties especially in respect of their representatives standing as candidates on other parties ’ lists. In other words, it means playing “hide and seek” with voters, thus undermining essential democratic principles.

5. The voting system in the instant case, which has the highest threshold in Europe, which fails to accommodate the interests and opinions of a large part of the electorate that identifies strongly with a particular region, or with a national or other minority (see paragraphs 114 - 15 of the judgment), and in which forming open coalitions with other political parties is prohibited (see judgment of the Constitutional Court – paragraph 42 of the present judgment ), clearly exceeds the very wide margin of appreciation left to the State and runs counter to the object and purpose of Article 3 of Protocol No. 1 . As Professor I . Budge has written, “[w] hat might have been justified then as an exceptional measure to buttress a still fragile democracy can hardly be justified now when the democracy is considered sufficiently stable and mature to seek membership of the European Union” [4] .

6. We are, therefore, not satisfied that these limitations of the voting system do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness ( see Mathieu- Mohin and Clerfayt v. Belgium , 2 March 1987, § 52 , Series A no. 113 ). It would seem, however, that by admitting that the system in place can be seen as being in accordance with Convention standards only if corrected, and at the same time accepting that these corrections are due to “ stratagems ”, the majority itself to a certain degree accepts a similar view.

Free elections are one of the foundations of justice and peace in Europe; they are indispensable for the development of an effective political/pluralist democracy and thus of the rule of law and observance of human rights. It is difficult to see how these fundamental goals, underlying not only the Convention but the whole Council of Europe system, can be achieved if based on electoral rules that need to be circumvented ( see paragraphs 133 ‑ 46 of the judgment , in particular 139 and 143) in order to be compatible with the Convention. Changes in this direction, by introducing the necessary reforms of the electoral system in a clear and transparent way, would thus – in our opinion – be the only appropriate way to improve the present situation in accordance with the Convention.

[1] . R. Z imbron , “The Unappreciated Margin: Turkish Electoral Politics Before the European Court of Human Rights”, 49 Harvard International Law Journal Online 10 (2007), http://www.harvardilj.org/online/125 , p. 1 8 .

[2] . OSCE , Office for D emocratic Institutions and Human Rights , Assessment Report: Republic of Turkey Parliamentary Elections (2002) , 4 December 2002.

[3] . R. Z imbron , op. cit. , p. 13.

[4] . Observations of the applicants, received at the Registry on 29 October 2007, point 4.