SECOND SECTION

DECISION

Application no. 50432/17 HALKIN KURTULUŞ PARTİSİ (HKP) against Türkiye

The European Court of Human Rights (Second Section), sitting on 30 January 2024 as a Committee composed of:

Jovan Ilievski , President , Lorraine Schembri Orland, Diana Sârcu , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 50432/17) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 June 2017 by a political party, Halkın Kurtuluş Partisi (HKP), founded in 2005 and based in Ankara (“the applicant party”), which was represented by Mr S. Kıran and Mr M. Bayyar, lawyers practising in Ankara;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns an alleged violation of the applicant party’s right to take an active part in, and hold campaigns in relation to, the constitutional referendum which took place on 16 April 2017, on account of its failure to meet the statutory criteria.

2. On 25 January 2017, on the basis of the organisational records filed by political parties as of 20 January 2017 and kept by the Chief Public Prosecutor’s Office at the Court of Cassation, the National Electoral Commission ( Yüksek Seçim Kurulu – “the Commission”) announced the list of political parties which were able to participate in the elections pursuant to sections 20 and 36 of Law no. 2820 on political parties ( Siyasi Partiler Kanunu ) and section 14 of Law no. 298 on the basic provisions relating to elections and electoral lists ( Seçimlerin Temel Hükümleri ve Seçmen Kütükleri ). The applicant was not listed among those parties, on the grounds that it had failed to establish its organisational bodies in at least half of the provinces and districts of Türkiye at least six months prior to election day.

3. The applicant party challenged that decision before the Commission and argued, in particular, that it had formed its organisational bodies in forty ‑ two provinces, and thus fulfilled all the preconditions to stand in elections.

4. On 16 February 2017 the Commission dismissed the applicant party’s objection. Having obtained the relevant records from the Chief Public Prosecutor’s Office at the Court of Cassation, the Commission concluded that the applicant party fulfilled the conditions for the establishment of its organisational bodies in only three provinces of Türkiye, namely Gaziantep, Muş and Bayburt, and failed to comply with the statutory requirements of the relevant legislation. In that connection, the Commission further noted that to be regarded as having an organisational body in a particular province, a party needed to establish its organisation in at least one-third of the districts of that province, which was not the case for the applicant party. Since, pursuant to Article 79 of the Constitution, no appeal lies against the decisions of the Commission to any other body, that decision became final on the date of its delivery.

5. The applicant party complained that the Commission had misapplied the legislation and that the decision on its eligibility to stand in the elections had infringed its right to participate in the constitutional referendum which had taken place on 16 April 2017, preventing it from campaigning. In that connection, the applicant party relied on Articles 1, 6, 7, 10 and 11 of the Convention and Article 3 of Protocol No. 1 to the Convention. Relying in substance on Article 13 of the Convention, the applicant party further complained that there was no effective remedy at its disposal in respect of the Commission’s decisions, since no right of appeal lay against its decisions to any other body.

THE COURT’S ASSESSMENT

6. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for instance, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). In the present case, it considers that the applicant party’s complaints relate mainly to the alleged violation of its right to participate and campaign in the constitutional referendum of 2017 and fall to be examined under Article 3 of Protocol No. 1 to the Convention alone, which reads as follows:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

7. The Court observes at the outset that the applicant party’s complaint mainly concerned the alleged violation of its rights under Article 3 of Protocol No. 1 to the Convention due to its inability to campaign in the 2017 constitutional referendum. In the light of the foregoing, the applicant’s allegations need to be examined from the standpoint of its inability to campaign during that referendum.

8. The relevant domestic law on the establishment of political parties’ organisational bodies in provinces and districts is set out in Yeşiller ve Sol Gelecek Partisi v. Turkey (no. 41955/14, §§ 18-24, 10 May 2022).

9. The Court notes that it has already examined the applicability of Article 3 of Protocol No. 1 to the constitutional referendum in question in Cumhuriyet Halk Partisi v. Turkey ((dec.), no. 48818/17, 21 November 2017) and emphasised that the text of Article 3 of Protocol No. 1 clearly suggested that its ambit was limited to elections − held at reasonable intervals − determining the choice of the legislature, and that its wording was a strong indication of the limits of an expansive, purposive interpretation of its applicability; accordingly, it found that Article 3 of Protocol No. 1 did not apply to referendums (see Cumhuriyet Halk Partisi , cited above, §§ 33-40, and the references cited therein)). In the light of the above considerations the Court declared the applicant party’s application in that case incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 (a) and rejected the application (see X. v. the United Kingdom , no. 7096/75, Commission decision of 3 October 1975, Decisions and Reports (DR) 3; McLean and Cole v. the United Kingdom (dec.), nos. 12626/13 and 2522/12, §§ 32-33, 11 June 2013; and Cumhuriyet Halk Partisi, cited above, § 40).

10. Having examined all the material before it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility of the applicant party’s complaints in the present case, as the referendum did not amount to an “election” within the meaning of Article 3 of Protocol No. 1, organised as part of a system of elections held at reasonable intervals providing the electorate in Türkiye with the opportunity to express its views on the “choice of the legislature”.

11. It follows that the applicant party’s complaints are incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.

12. As regards the applicant party’s complaints under Article 13 of the Convention taken in conjunction with Article 3 of Protocol No. 1, the Court further reiterates that Article 13 applies only where an individual has an “arguable complaint” under the Convention (see Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 207, 23 February 2016, and De Tommaso v. Italy [GC], no. 43395/09, § 180, 23 February 2017). Accordingly, it is not applicable in cases where the main complaint lies outside the material scope of the Convention (see Kaukonen v. Finland , no. 24738/94, Commission decision of 8 December 1997, DR 91, p. 14). In view of its conclusion concerning the applicant party’s complaints under Article 3 of Protocol No. 1 to the Convention, the Court thus considers that this complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must accordingly be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 February 2024.

Dorothee von Arnim Jovan Ilievski Deputy Registrar President