The right to free elections does not include referendums
JUDGMENT
Cumhuriyet Halk Partisi v. Turkey 30.11.2017 (no. 48818/17)
SUMMARY
The recent referendum in Turkey to extend the powers of the President has reached the Court of Strasbourg. A referendum was held on 16 April 2017 in Turkey, which significantly strengthened the powers of the President of the Republic, including the power to dissolve the parliament, appoint and dismiss vice-presidents and ministers and other state officials, including judges of the Constitutional Court. The plaintiff party complained about the referendum before the Commission requesting it to be invalid. It claimed that the Commission had violated the law by allowing and accepting ballot papers without stamps. However, the ECtHR stressed that the text of Article 3 of the First Protocol clearly stated that it was limited to the scope of the elections and showed the limits of an extensive, deliberate interpretation of its implementation. On the basis of the above, it found that the application of Article 3 of the First Protocol could not be extended to include referendums and dismissed the application as inadmissible.
PROVISION
Article 3 Of the First Additional Protocol
PRINCIPAL FACTS
A referendum was held in Turkey on 16 April 2017, which significantly expanded the powers of the
office of the President, including the power to dissolve parliament, to appoint and dismiss vicepresidents
and ministers and other high-level State officials, including judges of the Constitutional
Court.
On the day of the referendum, while some of the votes were being counted, the National Electoral
Commission received information that stamps had been used in some polling stations that had the
word “yes” on them rather than “choice”. The Commission decided on the same day that such
stamps were valid. The Commission was also later told that some ballot papers and envelopes had
lacked the necessary seals. It subsequently declared such envelopes and papers valid throughout the
country.
The result of the referendum showed that just over 51% of people who voted backed all
constitutional changes while just over 48% voted against. Turnout was approximately 85%.
The applicant party complained about the referendum to the Commission, asking to have it declared
invalid. It argued that the Commission had breached the law by allowing the ballots without seals. It
noted that the requirement to have ballots sealed was to avoid fraudulent voting and pointed out
that some envelopes and ballot sheets might have been deposited after being stolen. The
Commission should have established how many unsealed ballot papers there had been and then
have checked their validity. Allowing the ballots meant it had been impossible to remedy such irregularities. It complained that unlawful and unfair conduct during the referendum process had impaired the legitimacy of the vote and asked the Commission to annul the result. The Commission rejected the party’s complaint. Its decision was final as no appeal was possible under the Constitution.
THE DECISION OF THE COURT
The Court, after joining the complaint under Article 11 to that under Article 3 of Protocol No. 1,
found by a majority that the complaint was incompatible ratione materiae with the provisions of the
Convention and was therefore to be rejected as inadmissible.
The Court referred to the wording of the provision relied on by the party in its complaint and noted
that it talked of an obligation to hold “elections at reasonable intervals” which ensured the free
expression of the opinion of the people in the “choice of the legislature”.
It found that it cannot be inferred from the ordinary meaning of the term “elections” in Article 3 of
Protocol No.1 that a “referendum” would fall within the scope of that provision. Firstly, referendums, unlike elections, are not held “at reasonable intervals” owing to the fact that in most, if not all, cases they represent a system of ascertaining the opinion of the people on a matter that is not a recurrent subject, such as the Constitutional Referendum in the present case, which is limited to a particular time and a particular subject. Secondly, and importantly, referendums are not usually organised as a means of electing citizens to certain posts, in other words as an election giving the electorate the possibility to choose the legislature. In the present case, although the Constitutional Referendum introduced many significant changes to the Constitution, the people of Turkey were
clearly not choosing any particular person or persons for a legislative post or posts.
The Court examined the argument made by the applicant party that the changes brought about by
the referendum were so fundamental that they should fall within the scope of Article 3 of Protocol
No. 1. The Court considered that the party was asking it to take a “purposive” approach because of
the nature of those changes and the fact that they were inextricably linked to the concept of
effective political democracy in Turkey.
The Court noted the importance of the rights guaranteed by the provision in question, but again
emphasised that the text of Article 3 of Protocol No.1 clearly suggested that its ambit was limited to
elections and showed the limits of an expansive, purposive interpretation of its applicability. Based
on its considerations in the case and its earlier case-law, it found that the applicability of the Article
3 of Protocol No.1 could not be expanded to include referendums.
Other Articles
The Court noted that Article 13 only applied where there was an “arguable complaint”, which was
not the case as the complaint under Article 3 of Protocol No. 1 was inadmissible (echrcaselaw.com editing).
