DISSENTING OPINION OF JUDGE KŪRIS, JOINED BY JUDGE PAVLI

1 . There has clearly been a violation of Article 3 of Protocol No. 1 to the Convention. Let us have a look at the facts of the case and the way in which they have been addressed in the instant judgment. I wish they had been assessed adequately, that is to say, more critically.

2 . Some three weeks before the 2007 parliamentary elections, Mr Yılmaz , an independent candidate, asked the Ardahan District Electoral Council whether playing a song in Kurdish (alongside Turkish) would constitute a breach of Turkish law. He referred to two decisions of the authorities. The first was the decision of the Court of Cassation of 27 April 2005, which stated that playing a song in any language other than Turkish would not constitute a crime under domestic law. The second decision was that of the Supreme Electoral Council of 8 May 2007, which concluded that no language other than Turkish could be used in an election campaign. That blanket ban was copy-pasted from section 58 of decades-old Law no. 298.

The District Electoral Council provided no answer on the merits of the request. Instead, it decided that it had no jurisdiction on the matter of which it was seised and which could be determined only by a criminal court in the course of criminal proceedings.

The applicant tried his luck again by challenging the District Electoral Council ’ s decision before the Ardahan Provincial Electoral Council, which dismissed the objection and upheld the reasoning of the District Electoral Council. The Provincial Council too directed the applicant to the criminal courts.

Mr Yılmaz ’ s last attempt did not come to fruition either. The Supreme Electoral Council upheld the decision of the Provincial Electoral Council. Its own decision was adopted on the eve of the elections; so even if it had explained that playing a song in Kurdish constituted an exception to its recently reiterated absolutist rule and was not against domestic law (or at least not a criminal offence), Mr Yılmaz would not have been able to benefit from that explanation. Dates matter – or so they should.

3 . In the absence of a final ruling, Mr Yılmaz did not take any chances. Who would? The applicant simply did not play the song in Kurdish, and no criminal court was seised of this matter. Whether playing the song would have helped him in his campaign or not would be guesswork. At the end of the day, he garnered less than 10 percent of all votes cast, so I guess that most likely no song would have helped him to win. But that is a matter of third-rate significance. I could accept that the applicant might also have had other reasons (whatever they could be) for abandoning his wish to play the song in Kurdish, but that too would be irrelevant for this case. What is of primary importance is that, as we shall see, domestic electoral law as it stood in 2007 certainly needed clarification – clarification which he requested from the authorities in charge of the elections. This was not illegitimate, was it?

4 . Why can it reasonably be asserted that the legislation in question was not sufficiently clear? The decision of the Court of Cassation of 27 April 2005 came across as friendly to the potential players of songs in Kurdish. Could it be that the applicant, by requesting determination of whether he could play a song in Kurdish, in fact put an unnecessary burden on the authorities? If so, he could be said to have abused, in a peculiar form, his right of application to the authorities, who duly rejected his request. But no.

It depends on how one looks at it. Whatever statutes say is made real by court decisions: for it is the courts which say what the law is. The decision of the Court of Cassation of 27 April 2005, which interpreted section 58 of Law no. 298, could be understood as having curbed, to some extent, the absolutist drive of the prohibition on using a language other than Turkish in an election campaign and thus as having re ndered that prohibition not all ‑ embracing. On the other hand, dates indeed matter, as well as the circumstances in which a legal provision has been formulated.

This brings us to the relation between the two decisions referred to by the applicant in his initial request – that of the Court of Cassation of 27 April 2005 and that of the Supreme Electoral Council of 8 May 2007.

5 . For the foreign readership (but not exclusively) that relation is not instantly obvious, especially given: ( i ) that the decision of the Court of Cassation was adopted in the concrete circumstances of the case examined by criminal courts and might not compulsorily have had a precedential value in each and every situation where a song in languages other than Turkish was to be played during an election campaign; and (ii) that the decision of the Supreme Electoral Council, adopted right before the 2007 elections and intended to instruct those who stood in them, was subsequent to the first one by two years.

The latter – and later – decision merely reiterated a ban which was not novel, but a replica of the one which had for a long time been present in section 58 of Law no. 298. None of these twin provisions provided any specificities as to whether the term “language” (non-Turkish) covered all tongues of the world – those used in Turkey and those not, and those alive and those extinct; or whether the word “use” covered all imaginable forms of campaigners ’ recourse to non-Turkish, including, say, their greetings to people at rallies, or quotes from foreign texts, or the Oscars-style shouting (in English, which, to be sure, is not Turkish) “and the winner is!”, or wearing a cap, a pea-jacket or a T-shirt with an inscription in non-Turkish, or, for that matter, the crooning of the lyrics of a foreign tune. Casuistics aside, if the decision of the Court of Cassation had really neutralised some of the initial excessiveness of section 58 of Law no. 298, the Supreme Electoral Council would have had no trouble in at least hinting to that in its decision of 8 May 2007. As it had not even dropped such a hint, any electoral council, top-to-bottom or bottom-to-top, should have been entitled and able to explain that neutralisation to all those in need of that explanation – or even urbi et orbi (for example, on television). That would have been not only in the inquirers ’ interests, but also in the general interest. In a democracy, electoral authorities are meant to act in the general interest of the people, are they not? This is called good governance.

From the perspective of good governance, a reference (even a brief one) to the fact that the decision of the Court of Cassation of 27 April 2005 rendered the blanket prohibition of the above-mentioned section 58 of Law no. 298 not so absolute, despite the absolutist terms in which it was couched, would have been desirable, if not in the Supreme Electoral Council ’ s decision of 8 May 2007, then at least in the subsequent explanations by electoral authorities when they were seised of this matter, or even proprio motu . Good governance is intrinsically related to the rule of law, the principle underlying the European legal area and enshrined in the Convention. It requires that where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with the utmost consistency (see, for example, Megadat.com S.r.l . v. Moldova , no. 21151/04, § 72, 8 April 2008, and Moskal v. Poland , no. 10373/05, § 51, 15 September 2009). It is also incumbent on them to put in place internal procedures which enhance the transparency and clarity of their operations and minimise the risk of mistakes (see, for example, Rysovskyy v. Ukraine , no. 29979/04, § 70, 20 October 2011, with further references).

Against this background, the Supreme Electoral Council copy-pasted the impugned blanket ban from section 58 of Law no. 298 two years after the somewhat restrictive interpretation of the latter by the Court of Cassation. That jurisprudential development notwithstanding, the ban was repeated in its initial form, chilling as it was to those campaigners who would have wanted to play a song in a language other than Turkish. No wonder the applicant requested that the electoral authorities clarify the law as it stood at that time .

6 . It is unlikely that the Supreme Electoral Council, when adopting its decision of 8 May 2007, had been unfamiliar with the decision of the Court of Cassation of 27 April 2005. Such a doubt must therefore be rejected; otherwise it could be held that the Supreme Electoral Council ’ s decision of 21 July 2007 in Mr Yılmaz ’ s case was unlawful, on the ground (if not any other) that the body which adopted it was incompetent to rule on the matter before it.

But could the Supreme Electoral Council wilfully disregard (for whatever reason) the decision of the Court of Cassation? To give credence to this supposition, exceptionally weighty reasons would have to be adduced, yet I see none. I proceed on the assumption that the Supreme Electoral Council was guided by the intention to follow the law (whatever that law was and however it understood that law), not to undermine it.

So why then did the Supreme Electoral Council merely reiterate, in its decision of 8 May 2007, the blanket ban enshrined in section 58 of Law no. 298, without even hinting that that ban, per the case-law of the State ’ s highest court, might have been inapplicable in some situations?

We do not know.

Was it because that decision was applicable only in certain specific, exceptional, or even one-off, situations and thus left the blanket ban in question virtually intact and still almost all-encompassing?

Maybe this was so, maybe not. Again, we do not know for sure.

Very little information has been provided to the Court about that decision of the Court of Cassation, which nonetheless has served as a principal factor in substantiating the finding of no violation of Article 3 of Protocol No. 1.

7 . But let us explore one more hypothesis as to what the reasons for the Supreme Electoral Council ’ s silence on the ostensible two-year-old jurisprudential exception to the impugned blanket ban could be. Not wanting to be too assertive, I nevertheless think that such a hypothesis merited some exploration by the Chamber, especially given the fact that it is insistently suggested by the Court ’ s most pertinent over-seven-year-old judgment, which in the instant case should have been given much greater prominence than it has actually recei ved. That is to say, between 27 April 2005 and 8 May 2007 something of jurisprudential significance happened which prevented any hint about, so to say, the “gap in the ban” . That “something” had already been dealt with by the Court in Şükran Aydın and Others v. Turkey (nos. 49197/06, 23196/07, 50242/08, 60912/08 and 14871/09, 22 January 2013). That case has much in common with the instant one, but is mentioned in the present judgment only once, in paragraph 34, and moreover from an angle which does not seem instructive.

In Şükran Aydın and Others five applicants were convicted for speaking Kurdish during an election campaign. Kurdish was their mother tongue, but also that of the population whom they were addressing. They complained under Articles 6, 9, 10, 11 and 14, and Article 3 of Protocol No. 1 (the latter was invoked by three of them). The Court examined their grievances under Article 10, which alone was invoked by all applicants, and found a violation of that Article, but held that it was not necessary to rule on the complaints under Article 14, not invoked by all applicants, in conjunction with Article 10. It held that the blanket ban, as contained in section 58 of Law no. 298 and entailing criminal sanctions for breaches of that provision, deprived the domestic courts of their power to exercise proper judicial scrutiny, did not meet a pressing social need, was not proportionate to the legitimate aim of “prevention of disorder” (adduced by the Government), and was not necessary in a democratic society. The Court skipped the examination of whether the above-mentioned aim was legitimate – which is telling.

What is relevant to the hypothesis explored here is that in Şükran Aydın and Others the applicants were sentenced at various times both before and after 27 April 2005, the date of the ostensibly restrictive interpretation of section 58 of Law no. 298 by the Court of Cassation. Moreover, some convictions were upheld by that very court after that date.

It follows that the presumption that the decision of the Court of Cassation of 27 April 2005 amounted to decriminalisation of some forms of the use of Kurdish during an election campaign (so Mr Yılmaz had nothing to fear if he chose to play a song in Kurdish) was not set in stone . It was rebuttable , in view of the fact that the applicants in Şükran Aydın and Others (and maybe other persons) were convicted for using Kurdish in election campaigning.

True, they were convicted not for playing songs in Kurdish, but for using Kurdish in their speeches. That notwithstanding, the real extent of the statutory ban in question, as reiterated by the Supreme Electoral Council, was insufficiently clear. In general, the line between singing (or playing a song) and speaking (relaying a recorded speech) is a very fine one with regard to some forms of expression (is rap singing or speaking?). Even more so, there is no clear-cut water-divide between playing a song in another language and speaking in that language. One of the applicants in Şükran Aydın and Others maintained that he had spoken in Turkish but may have greeted some people in the audience in Kurdish – and he was convicted. If, per the decision of the Court of Cassation of 27 April 2005, someone had been allowed to play a song in Kurdish, would he or she have been allowed also to announce it in Kurdish? It would seem natural for a song in Kurdish to be announced in Kurdish, would it not? But was that natural under Turkish law in 2007? Or was such an announcement to be prosecuted – criminally or otherwise?

Again, the ostensible curbing, by the Court of Cassation, of the absolutist complexion of the blanket ban in question was not so radical as it is portrayed in paragraph 34 of the instant judgment, where it has been given undue prominence. This may allow for some understanding as to why the Supreme Electoral Council two years later simply repeated the statutory formula of the ban.

That ban is no longer in place. Şükran Aydın and Others contributed to this development. In 2014 the ban was removed (see paragraph 17). But even before that, in 2010, the infamous section 58 of Law no. 298 was amended, providing that “[d] uring election campaigns political parties and candidates shall primarily use Turkish” (see Şükran Aydın and Others , cited above, § 51).

8 . But now is now, and then was then. In 2007 it was merely consequential for someone standing for election to ask for clarification of insufficiently clear electoral legislation. Mr Yılmaz did just that: he requested that the electoral council(s) explain what the decision of the highest of them meant , no less, no more. In legal theory this is called authentic interpretation . Did he apply to the wrong institution?

The judgment ’ s “Relevant legal framework and practice” section does not deal with the powers of electoral councils. I wish it did. This omission may be legitimate on one condition, namely that Turkish electoral councils are competent in their knowledge of electoral law (including the related judicial practice), and able to properly advise those in need. Otherwise, why on earth do they exist? If electoral councils are entitled to adopt binding decisions, they must have both the jurisdiction and the ability to explain the meaning of those decisions before the law is violated. What other body could be better placed for preventing in this way the commission of offences?

9 . The facts of the case suggest a far-fetched answer to this seemingly rhetorical question: the electoral authorities ’ decisions were to be clarified not by themselves, but by the criminal courts .

Criminal courts in all States do indeed clarify various matters, including those related to offences committed during elections. The petty triviality is that they do so ex post facto . Turkish criminal courts, too, could have satisfied Mr Yılmaz ’ s curiosity, if curiosity it was, on the condition that they had been seised of the matter, which was possible if criminal proceedings had been initiated against him. Thus, to have electoral legislation clarified, Mr Yılmaz had to commit an act which might turn out to be a criminal offence and result in his conviction (or any other offence resulting in another form of liability). He, however, abstained from the act which he was not sure was lawful – to the detriment of the clarity and certainty of domestic electoral legislation. How ungenerous!

There is no such thing as a free lunch; all learning comes at a price. It appears that the price for satisfying curiosity may be such as to resolve that remaining in ignorance is not so bad after all.

The Turkish electoral councils ’ stance in Mr Yılmaz ’ s case meant that they (in addition to their main function) were seen as sui generis “advisory bodies” – at least in some election-related disputes. This innovative idea could make a strong showing in the competition for the Ig Nobel Prize or some other parody award, because the “effective remedy to be exhausted” for the purposes of the request for “advice” to be accepted by the “judicial advisory body” is the commission of an offence, for which the “inquirer” may be convicted – as a side-effect of the ex post provision of the “advice”.

The idea would be amusing, were it not rueful.

This is how Turkish (bottom-to-top) electoral councils saw that things had to evolve in the applicant ’ s case. If he wanted to be sure whether playing a song in Kurdish was allowed, he had to play it and wait for a conviction or an acquittal. Instead of preventing the possible offence, the electoral councils suggested that the applicant commit the act which might be an offence (even a criminal one) . No act meant no clarification on what the law said. The legislation applied in Mr Yılmaz ’ s case had already been torn to shreds by this very Court in Şükran Aydın and Others (cited above). What is now obvious is its other fault – the impossibility of obtaining an interpretation. The Chamber did not budge on that front.

This brings back to mind the notion of good governance, in particular the requirement that public authorities put in place internal procedures which enhance the transparency and clarity of their operations and minimise the risk of mistakes (see paragraph 5 above). Forget that, says this judgment.

10 . The finding of no violation of Article 3 of Protocol No. 1 in this case renders “good governance” mere empty words, justifies the oddball approach to the prevention of offences in general and the functions of the criminal courts in particular, and whitewashes the discriminatory, undemocratic practices long ago condemned by this very Court. Only at this high price could the said finding of no violation be substantiated. In my opinion, Article 3 of Protocol No. 1 has been violated . A violation of Article 10 could also have been found, had the Chamber examined this case from the same standpoint as Şükran Aydın and Others (cited above).

11 . The doctrinal basis for that substantiation is set out in paragraphs 31-33, where the Court recalls the principles established in its Article 3 of Protocol No. 1 case-law, as summarised in Mugemangango v. Belgium ([GC], no. 310/15, 10 July 2020), inter alia , that the Court, confined to its subsidiary role, must not take the place of the national authorities in interpreting domestic law or assessing the facts, in particular in the context of electoral disputes. Paragraphs 34-36, which deal with the application of the said principles to the facts of the case, do not cite either Mugemangango or any other case referred to in that judgment (the only case cited is Şükran Aydın and Others , cited above).

Mugemangango is a great judgment. However, though being about elections, it concerned a matter very different from the one examined in the instant case. To put it bluntly, it concerned the recount of ballot papers, i.e. ( ir )regularities in an election procedure , where the threshold for the Court ’ s intervention is indeed very high.

The instant case has nothing to do with the election procedure as such , let alone the counting of ballots. It is about the ability to campaign freely . Restrictions on campaigning are hard to quantify and are not easily (if at all) translated into electoral impact (for their assessment, the outcome of the election is of little, if any, relevance; compare paragraph 3 above). The Court ’ s case-law to be followed naturally in a case on restrictions imposed on campaigning is not Mugemangango (whatever its virtues), but rather Article 10 case-law , including Şükran Aydın and Others . In this regard Article 3 of Protocol No. 1 and Article 10 are joined at the hip. By the way, had the Chamber followed Şükran Aydın and Others , it would not have engaged in something which its subsidiary role commanded it to avoid in cases dealing with ( ir )regularities in an election process, but would have engaged in matters which were not only dealt with, but had already been decided upon from the standpoint of Article 10, for the domestic law in question and analogous facts had already been assessed in Şükran Aydın and Others .

The failure to follow its own case-law is artificial and leaves the Court open to a charge of inconsistency .

12 . On the subject of inconsistency, the present judgment displays more of that quality in the reasoning which directly substantiates the finding of no violation of Article 3 of Protocol No. 1. That reasoning, leading as it does in the opposite direction from that of the Court ’ s earlier views, is contained in a single paragraph, the remarkable half-page paragraph 34. It can be summed up in a few lines.

The impugned ban is interpreted as being “applied to all political parties and candidates without exception”. Prominence is given to the fact that Mr Yılmaz was a lawyer, who “should have known” not only “that the Electoral Council had no authority to give an approval to his request”, which was “purely abstract”, but also that “playing a song in Kurdish would not have constituted a criminal offence [owing to] the decision of the Court of Cassation [of 27 April 2005]”. Moreover, “it appears [from the decision of the Court of Cassation of 27 April 2005] that playing a song in Kurdish would not have constituted a criminal offence”; “[ i ]n any event ... no criminal proceedings were initiated against the applicant” (here the a contrario comparison with Şükran Aydın and Others , cited above, is brought in). And it is concluded that the applicant “was able to stand in the elections ... and there is no allegation that [he] was prevented from conveying his political and social opinions to the public during the election campaign”.

That ’ s it. Truth to tell, these factually and legally misleading arguments raise more questions than they give answers. The questions are as follows, one by one.

13 . The attempted justification of the impugned ban as applicable equally to all (in particular, Turks equally with Kurds) does not hold water. In 2013 the Court made mincemeat of that provision. The Turkish State itself got rid of it years ago. Why would anyone even want to embellish that shameful ban?

14 . Contrary to the majority ’ s plainly erroneous assessment, the applicant ’ s request was not “purely abstract” , that is to say, not an actio popularis born out of mere curiosity. Let us separate cutlets from flies: an abstract interpretation of legislation does not render the request for an interpretation abstract. The request in question must be assessed on its own merits , account being taken of its context and of whether the requested interpretation would be dispositive for the further actions that the inquirer may or may not take. The context of Mr Yılmaz ’ s request was as concrete as could be. He stood for election. He campaigned. He intended to play a song (in two languages). I surmise that he knew where and when he would play the song and even had the equipment ready for that purpose (the campaign vehicle was explicitly mentioned in his request). And, having not received an answer from the electoral authorities, he abstained from playing that song. What was “purely abstract” here?

15 . Contrary to what the judgment says, the applicant had not asked the District Electoral Council (and subsequently the superior electoral councils) for any “approval” of a request. What he did request was not that the authorities “approve” of his playing a song in Kurdish, but that they provide an interpretation of the electoral legislation as to the possible sanctioning for playing the song in Kurdish , which was not sufficiently clear to those to whom it might have been applied. In the Court ’ s language, such legislation is called unforeseeable or unpredictable , often leading it to find a violation of the relevant Article.

16 . Mr Yılmaz did not ask the authorities whether playing a song in Kurdish would constitute a criminal offence. He requested that they “ determine whether playing a song ... in both the Turkish and Kurdish languages from his campaign vehicle would constitute a breach of domestic law ” (paragraph 6; emphasis added). This fact, correctly noted in the “Facts” section, is distorted in paragraph 34, inter alia , by underlining that domestic law carried no risk of the applicant ’ s criminal prosecution, owing to the decision of the Court of Cassation of 27 April 2005. This is a substitution : playing a song in Kurdish might not have been contrary to criminal law, but still against the law and entailing another form of liability . To everyone ’ s great relief, criminal law is not all law.

17 . Can any significance at all be attached to the fact that the applicant was a lawyer ? He certainly had a law degree, but what does the Court know about the field of his legal practice or, for that matter, whether he practised law at all? Does it flow from being a lawyer that one is knowledgeable in all fields of law, including electoral law? To claim that whoever has a law degree “should know” all law would amount to holding that if one is a sportsman, he or she should be skilled in track and field, weight-lifting, swimming, horseracing, football, aerobics and so on. In a similar vein, the applicant might well have been a family lawyer, or an insurance lawyer, or a real estate lawyer, or a tax lawyer, or an international lawyer, etc., he might have been specialising in legal sociology or comparative legal history, you name it – but of that the Court knows nothing. Why should it know? And since when have lawyers been deprived of the right to address authorities with requests?

18 . In addition to being “fully aware” of the decision of the Court of Cassation of 27 April 2005, the applicant may also have been aware of the subsequent practice of that court of apex jurisdiction , in particular the convicting of persons in situations similar to his own, which pointed to a stance by that court that was opposite to the one taken in the said decision. These convictions were dealt with by the Court in Şükran Aydın and Others (cited above) and found to be contrary to Article 10. It is the Chamber that chose to ignore that practice . Had there not been this other line of judicial practice, there would have been less (if any) need to request that the authorities clarify the law. This merely demonstrates that the applicant ’ s request was not inconsequential.

19 . The majority claim that the applicant should have known that the electoral council(s) had no authority to give an “approval to his request”. As mentioned in paragraph 8 above, the judgment does not deal at all with the powers of electoral councils. The legal basis for the presumed absence of authority to give a requested instruction (not to “approve a request”) has not been demonstrated to the Court. Wherefrom does the Chamber know that the dismissal of the applicant ’ s request was not arbitrary , if it has not analysed the legislation on the powers of the electoral councils?

20 . It is rightly noted that no criminal proceedings were initiated against the applicant. But so what? They were not initiated because the applicant did not take any chances and did not play the song in Kurdish. It is bewildering and sad to see the Court rationalising that it is an asset that a person was not criminally prosecuted for an act which could have been an offence, but an act that he or she, wishing to stay on the safe side, did not commit .

21 . Last but not least, the majority are satisfied that the applicant was not prevented from conveying his political and social opinions to the public during the election campaign. This is not much to be satisfied with. A campaigner seeks not only to “convey his political and social opinions to the public”, but to do so in a certain way, which also means freely . In this regard Mr Yılmaz was effectively prevented by the domestic authorities from doing what he legitimately sought to do . He might have erred in the assessment of the effectiveness of the means chosen. But, if liberty means anything, that is not the business of any authority. Not even that of this Court.