PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGES SAJÓ, KELLER AND LEMMENS

(Translation)

1. We unfortunate ly cannot agree with the majority ’ s findings in the present case as regards the complaints of a violation of A rticle 3 of Protocol No. 1 to the Convention and A rticle 14 of the Convention. Our disagreement concerns both the method used by the majority to analyse the case and the application of the general principles to the instant case .

Furthermore , even though we have fallen into line with our colleagues ’ opinion regarding the complaint of a violation of A rticle 13 of the Convention, we would have preferred the opinion to be based on a rather different line of reasoning .

I. Alleged violation of A rticle 3 of Protocol No. 1 to the Convention and A rticle 14 of the Convention

A. General considerations

2. We concur with the majority on general principles . The present case concerned in particular the general principles governing the right to stand in elections .

Like the majority , we accept that this right is not absolute and that there is room for “ implied limitations ” , that is to say implicit ly accepted restric tions , and that the S tat e s P arties to the Convention enjoy a wide margin of appreciation in this regard ( see paragraph 49 of the judgment ).

We must stress that the instant case does not concern restrictions to the right to stand for election as such . The Turkish system permits independent candidates to stand in elections , and it was in this capacity that the applic ant presented his candidature. Again, inasmuch as the applicant complained of the fact that Turkish citizens living abroad could not vote for independent candidates , the application did not raise the question whether there had been a legitimate restriction on such electors ’ voting rights as in any case they had been included in the voting and been able to expr ess their opinion .

The present case mainly concerned the question whether the applic ant had been able to take part as a candidate in a set of elections under conditions that complied with A rticle 3 of Protocol No. 1, that is to say “ under conditions which ... ensure the free expression of the opinion of the people in the choice of the legislature ” . The questions at issue were the electoral system ( application n o. 28881/07) and the regulations on the electoral campaign ( application n o. 37920/07).

3. As regards the determination of the voting system , the Court a ccepts that there are many ways of organising and running electoral systems . All electoral legislation should be assessed in the light of the politi cal development of the country in question . The S tat e s P arties are, in principle , free to adopt the system of their choice , at least so long as the system they ch o ose provides conditions which will ensure the “free expression of the opinion of the people in the choice of the legislature” ( see Yumak and Sadak v . Tur key [GC], n o. 10226/03, § 111, E CH R 2008, and Sitaropoulos and Giakoumopoulos v . Greece [GC], n o. 42202/07 , § 66, E CH R 2012 ).

The phrase “ conditions which will ensure the free expression of the opinion of the people in the choice of the legislature ” impli es , apart from freedom of expression , which is in fact already protected by A rticle 10 of the Convention, the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election . C learly this does not imply that all votes must have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory ( see Mathieu-Mohin and Clerfayt v . Belgium , 2 March 1987, § 54, Series A n o. 113 ; Bompard v . France (d e c.), n o. 44081/02, E CH R 2006 ‑ IV ; and Yumak and Sadak , cited above , § 112). However , freedom of voters to express their wishes requires that “ in practice, electors should be able to cast their votes for registered lists or candidates ” ( see European Commission f or Democracy through Law [ the “Venice Commission ” ] , explanatory report to the Code of Good Conduct in Electoral matters , adopted at the Commission ’ s 52 nd session (18-19 October 2002), p aragraph 27, document CDL-AD (2002) 23 rev).

4. As regards access by candidates to radio and television , the majority rightly mentions the importance in the period preceding an election of ensuring that opinions and information of all kinds can circulate freely (see paragraph 51 of the judgment , which refers to The Communist Party of Russia and Others v. Russia , no. 29400/05, § 107, 19 June 2012) .

A ccordingly, access to the media must be regulated so as to take into account the principle of equal suffrage . We set great store by the Venice Commission ’ s position that the important thing is “ to make sure that the candidates or parties are accorded sufficiently balanced amounts of airtime or advertising space, including on state radio and television stations ” ( explanatory report cited above , p aragraph 19), even though the Court noted , in connection with the above-mentioned position , that A rticle 3 of Protocol No. 1 was not conceived as a code on electoral matters designed to regulate all aspects of the electoral process ( see The Communist Party of Russia and Others v. Russia , cited above , § 108).

5. We would also emphasise that th e principles of legality and non-discrimination take on special importance in the electoral field . Elections are a competition in which the politi cal parties and candidates must vie for the electors ’ votes . Any obstacle to the equality principle favours one side and prejudices the others, and can have an impact on the results.

The importance of the principle of equal suffrage was recently reaffirmed by the German Federal Constitutional Court . In a judgment of 26 February 2014 ( relating to the electoral threshold for European elections , 2 BvE 2/13 and Others and 2 BvR 2220/13 and Others ), the Constitutional Court r eiterated that while the equality principle was not incompatible with differences in treatment , the latter were subject to strict criteria in the electoral fi e ld . Differences in treatment could only be justified on constitutionally admissible ground s of sufficient importance to be weighed against electoral equality ( see C, I, 3, a), ff . ), 1).

According to our Court ’ s well-known case-law , discrimination means treating differently, without an objective and reasonable justification, persons in similar situations . “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” ( see , f or applications of this principle to the electoral fi e ld , Sejdić and Finci v . Bosnia -Herzégovine [GC], n os. 27996/06 and 34836/06, § 42, E CH R 2009 , and Özgürlük ve Dayanışma Partisi (ÖDP) v . Tur key , n o. 7819/03 , § 26, E CH R 2012 ). I n our view, in the electoral fi e ld the Court must carry out a strict verification of the justification put forward .

B. Assessment of the complaints

1. The applic ant ’ s inability to stand as a candidate for Turkish voters living abroad

6. The applic ant was an independent candidate standing in an electoral district of Istanbul. He was able to stand as a candidat e for ele ctors residing in this district but not f o r those resid ing abroad, who could only vote f or the political parties . And yet the political parties and the independent candidates were fighting for the same seats in the applic ant ’ s electoral district .

This re strict ed the applic ant ’ s chances of winning votes . Such a re stri ction “ infringes the principle of equal suffrage ” ( see Opinion n o. 269/2003 adopted by the Venice Commission on 17 December 2003, setting out joint recommendations by the Venice Commission and the Office for Democratic I nstitutions and Human Righ ts ( OD IH R ) of the Organisation f or Security and Cooperation in Europe (OSCE) on the electoral law and the electoral administration in Armenia , p aragraph 30, document CDL-AD (2003) 21). The restriction is compatible with A rticle 3 of Protocol n o. 1 only if it does not thwart the “ free expression of the opinion of the people in the choice of the legislature ” .

7. The majority takes the view that this restriction of the applic ant ’ s right to stand as a candidate for Turkish vo ters residing abroad was justifi ed on a number of grounds .

First of all , the majority refers to the “ technical difficulties ” of implementing voting rights for expatriate Turkish citizens ( see paragraph 61 of the judgment ), thus repr ising the Government ’ s argument . We realis e that the exercise of voting rights by electors living abroad raises specific problems ( see Shindler v . the Uni ted Kingdom , n o. 19840/09 , § 114, 7 May 2013). However , those difficulties are not insurmountable . In the report on out-of-country voting which it adopted at its 87 th session (17-18 June 2011), the Venice Commission pointed out that there were two possible way s of ensuring that the votes of expatri ate citizens were taken into account fairly . Th e first was to allow such electors to participate in the electoral process in ordinary constituenci es, which presupposed a system of attach ing each voter to a specific c onstituency . Th e second was to create one or more specific constituencies for nationals living abroad ( see p aragraphs 77-84, document CDL-AD (2011) 022). Turkish law provides for a hybrid system which does not attach expatri ate voter s to any specific c onstituency or create any specific separate constituency , but tallies their votes a t the national level . We are not convinced that a system allowing independent candidates to stand for expatri ate electors i s techni cally impossible.

The majority also refers to the 22 May 1987 judgment of the Turkish Constitutional Court finding that the current system “ struck a fair balance between expatriate voters and those living in the national territory” ( see paragraph 62). We do not consider such a balance relevant under A rticle 3 of Protocol No. 1. The import ant thing is th e free expression of the people ’ s opinion on the choice of legislature . The fact of p rohibiting certain electors from voting for independent candidates and forcing them to vote for a political party is not such as to allow the “free expression of the opinion” of this section of the electorate.

The majority takes the view that the impugned restriction is also based “ on the legitimate concern the legislature may have to limit the influence of citizens resident abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country ” ( see paragraph 63). Apart from the fact that the Government would not appear to have mentioned such a justification, we consider it completely irrelevant . The legislature has granted voting rights to citizens resident abroad . That means that they consider them capable of particip ating, together with citizens living i n Tur key , in cho osing individuals apt to govern the country . If the legislature had wished to restrict the influence of vo ters residing out side the national territo ry , they would have opted for methods other than prohibiting them from voting for independent candidates , naturally with respect for the requirements of A rticle 3 of Protocol No. 1.

Another ground put forward by the majority concerns the importance of the role played by politi cal parties ( see paragraph 64). T he ir role is undeniably important . However , in a system which allows independent candidates to stand apart from the politi cal parties , voters must be permitted to choose between the two . In our view , the role played by politi cal parties cannot be used to justify prohibiting independent candidates from standing for a section of the electorate .

Lastly, the majority refers to the legislature ’ s legitimate concern to obviate excessive fragmentation of the electoral process, thus ensuring the political stability of the country and of the government, and therefore to reinforce the expression of the opinion of the people in the choice of the legislature (see paragraphs 65 and 66 of the judgment, where the Court refers to Özgürlük ve Dayanışma Partisi (ÖDP) , cited above, § 42). This argument does not convince us. The way to prevent excessive fragmentation of the movements represented in Parliament is to set an electoral threshold (see Yumak and Sadak , cited above, § 125). In our view, however, simply making it impossible for independent candidates to stand for a section of the electorate i s not a n appropriate means of achieving that aim.

We therefore take the view that none of the grounds advanced by the majority can justify the impugned restriction.

8. The majority could have invok ed another ground by noting, first ly , that the electoral threshold only exists at the national level and only applies to political parties, and secondly, that the votes cast by Turkish citizens resident abroad, which are added to those cast nationwide for the different political parties, are only relevant in deciding whether the parties have exceeded the threshold (see section 94 II h) para. 2 of Law no. 298; see paragraph 23 of the judgment).

Such an argument would, however, fly in the face of the fact that at constituency level the independent candidates are in direct competition with the political parties. The question whether a political party has exceeded the electoral threshold at national level can have an impact on the distribution of seats at the constituency level. It follows that the issue of the national threshold applicable to political parties concerns not only the parties themselves but also the independent candidates.

Furthermore, it would appear to follow from section 94 II h) [ 3 ] and [ 4 ] of Law no. 298 (not incorporated into paragraph 23 of the judgment) that the number of votes cast in the polling stations set up a customs posts is taken into account in calculating the total number of votes cast for the political parties in each electoral district, in accordance with a formula based on the number of votes obtained in the aforementioned polling stations and the number of votes obtained in each of the electoral districts.

Moreover, one way to mitigate the negative effects of a 10% electoral threshold, which is, in principle, “excessive” according to the Court (see Yumak and Sadak , cited above, § 147), lies in the possibility of standing as an independent candidate who is not subject to that threshold (ibid., §§ 135 and 136). The Court nevertheless found that “ this was a makeshift solution compared with the position of a candidate officially sponsored by his or her political party” (ibid., § 138). We consider that the conclusions should be fully drawn from this latter finding.

9. Drawing on the foregoing comments , we consider that the applicant ’ s inability to stand for ele ctors residing abroad imposed a restrict ion on his right to stand as a candidate which was incompatible with Article 3 of Protocol No. 1.

10. As r egards the nature of the complaints under Article 3 of Protocol No. 1 and Arti cle 14 of the Convention and the conclusion adopted under the first of these two provisions, we consider it un necessary to consider separately the complaint of a violation of Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1.

2. The applicant ’ s lack of access to airtime on national radio and television stations

11. In connection with the regulations on electioneering on radio and television, the applicant complained of the privileges granted to political parties in this field. Under section 52 of Law no. 298 political parties are allowed airtime on the national public radio and television stations (TRT) for electioneering purposes. Independent candidates are not allowed to participate in such broadcasts.

Since the applicant ’ s complaint mainly concerned a difference in treatment between political parties and independent candidates, we consider that it should be examined first of all under Article 14 of the Convention.

12. Like the majority, we consider that the possibility of conducting an election campaign is an integral part of the exercise of the right to stand in elections. This issue therefore fall s within the ambit of Article 3 of Protocol No. 1 (see The C ommunist Party of Russia and Others v. Russia , cited above, §§ 107 ‑ 108) .

Consequently, Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1 is applicable in the present case.

13. Unlike the majority (see paragraph 74 of the judgment), we do not doubt that, from the angle of the election campaign the applicant and the political parties can be deemed to have been in a comparable situation for the purposes of Article 14 .

14. It remains to be seen whether the difference in treatment between political parties and independent candidates was based on objective and reasonable justification.

We accept that no system for granting access to the national radio and television stations can ensure access for all candidates. On the contrary, it is necessary to restrict the number of persons or groups benefiting from election broadcasts in order to preserve the effectiveness of the system. The fact of limiting access to specific categories of candidates and excluding other is therefore not in itself contrary to Article 14 of the Convention. In other words, we acknowledge that the impugned difference in treatment pursued a legitimate aim.

It remains to be seen whether the establishment of differential treatment between political parties and independent candidates c an be deemed proportionate and suited to the aim pursued.

According to the majority, the difference in treatment was justifi abl e by the fact that political parties have the power to influence the whole national regime and can electioneer nationwide, while independent candidates have no such power and can only stand for voters in their local constituency (see paragraph 73). We consider that this affirmation suggests a bias towards the political parties to the detriment of independent candidates. It is not impossible for an independent, especially if he or she is elected, to play a major, or indeed crucial, role in the political life of the country.

We can understand that access to the national media should be reserved for candidates who can lay claim to a specific level of representativeness (compare, as regards public funding for political parties, the aforementioned judgment Özgürlük ve Dayanışma Partisi (ÖDP) , §§ 43-49). Nevertheless, section 52 § 2 a) of Law no. 298 grants access rights to all political parties standing for election (additional airtime is granted to parties meeting other criteria as listed in section 52 § 2 b) and c)). We take the view that the mere fact of being either a political party or an independent candidate i s not an appropriate criterion for differentiating between candidates allowed access to election broadcasts and those not allow ed such access.

This finding leads u s to conclude that there was no reasonable relationship of proportionality between the means used and the aim pursued, and that there was consequently a violation of Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1.

15. Having regard to this conclusion, we consider that there is no need to examine the complaint separately under Article 3 of Protocol No. 1 taken alone.

II. The alleged violation of Article 13 of the Convention

16. As regards Article 13 of the Convention, we subscribe to our colleagues ’ conclusion that there has been no violation of this provision.

We do, however, consider that the judgment does not correspond precisely to the complaints as submitted.

We take the view that the applicant ’ s complaint concerns the lack of an effective remedy enabling him to complain of the alleged violations of his rights under Article 3 of Protocol No. 1. In our opinion the applicant complained in particular of the unfairness of the proceedings before the Higher Electoral Council which had resulted in the decision of 4 July 2007 (see paragraph 11 of the judgment), o f the fact that the decree issued by this authority on 27 May 2007 (see paragraph 9 of the judgment) and the decision which it adopted on 4 July 2007 (cited above) were not open to appeal before a judicial authority, and lastly of the fact that no appeal lay with the Constitutional Court against section 94 II of Law no. 298.

Inasmuch as the applicant complained of the unfairness of the proceedings before the Higher Electoral Council, his complaint concerned the fact that this authority dismissed his appeal on 4 July 2007 without having held a hearing at which he might have appeared in order to explain his point of view. We consider that, having regard to the nature of the applicant ’ s complaint, which related to the electoral rules applicable to Turkish citizens resident abroad, the fact that the proceedings before the Higher Electoral Council were written does not allow t he conclu sion that the remedy before this authority was ineffective.

As regards the other complaints, we subscribe to the line of reasoning set out in paragraphs 86 and 87 of the judgment.