Refusing to respond to a candidate’s request whether playing a Kurdish song in his election campaign was an offense did not limit or affect the effectiveness of his voting rights
JUDGMENT
Ahmet Yavuz Yılmaz v. Turkey 10.11.2020 (app. no. 48593/07)
SUMMARY
Right to be elected. Possibility to play a Kurdish song in the election campaign of a candidate for MP.
The applicant is a lawyer and run in the national elections. He applied to the Electoral Council of his district to clarify if he could play a Kurdish song in his election campaign and if it was illegal, because the election law provided that the election campaign could only take place in Turkish, the The Supreme Court had ruled that the reproduction of a Kurdish song was not illegal. The Council replied that it had no jurisdiction to respond.
The applicant’s election campaign was conducted normally. He then lodged a complaint with the ECtHR alleging that he had not been able to play the Kurdish song and that his voting rights had been violated.
The Court stressed that the rights guaranteed under Article 3 of the First Additional Protocol to free elections are vital to the establishment of democracy. However, he reminded that it has an ancillary character in judging the way states organize their electoral systems. However, the ECtHR is entitled to examine whether the conditions imposed on the right to vote or to stand for election: a) restrict the exercise of these rights to the extent that they affect their core and effectiveness; (c) the means used are not disproportionate.
In the present case, it found that by refusing to play a Kurdish song, the applicant’s right to vote had not been restricted to such an extent as to affect its effectiveness, given that its election campaign had been properly conducted and he himself had invoked the stipulated that it was not illegal to play a Kurdish song.
The Court held that there was no violation of Article 3 of the First Additional Protocol.
PROVISION
Article 3 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Ahmet Yavuz Yılmaz, is a Turkish national who was born in 1959 and lives in Ardahan
(Turkey). He is a lawyer.
The case mainly concerned his complaint about a lack of clarity as to whether he could play a
Kurdish song during his campaign as an independent candidate in the parliamentary elections of July
2007.
Shortly before the election, Mr Yılmaz applied to the Ardahan District Electoral Council to enquire
whether playing a Kurdish song from his campaign vehicle would constitute a crime. He referred in
particular to section 58 of Law No. 298 stipulating that only the Turkish language could be used in
election campaigns and a decision by the Court of Cassation of 2005 concluding that playing or
singing a Kurdish song did not constitute a crime under domestic law. His case was however
ultimately dismissed because the Electoral Council had no jurisdiction on the matter.
He stood in the elections on 22 July 2007, but disputed the results. He requested a recount because,
as an independent candidate, his name had been printed in a smaller font size on the ballot papers
than that used for political parties. The Electoral Council dismissed his request, finding that the
ballot papers had been in line with domestic law.
Relying on Article 3 of Protocol No. 1 (right to free elections), Mr Yılmaz alleged that he had not been
able to play a Kurdish song during his electoral campaign. He also raised other complaints about
ballot paper irregularities, strict security measures and having to hold his campaign meeting in a
sports centre far from the city centre.
THE DECISION OF THE COURT…
The Court reiterates that Article 3 of Protocol No. 1 differs from other rights guaranteed by the Convention and its Protocols as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom. However, having regard to the preparatory work to Article 3 of Protocol No. 1 and the interpretation of the provision in the context of the Convention as a whole, the Court has established that this provision also implies individual rights, including the right to vote and to stand for election31.
Accordingly, in accordance with the subsidiarity principle, it is not for the Court to take the place of the national authorities in interpreting domestic law or assessing the facts. In the specific context of electoral disputes, the Court is not required to determine whether the irregularities in the electoral process alleged by the parties amounted to breaches of the relevant domestic law. Nor is the Court in a position to assume a fact-finding role by attempting to determine whether the alleged irregularities took place and whether they were capable of influencing the outcome of the elections. Owing to the subsidiary nature of its role, the Court needs to be wary of assuming the function of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case.
The rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, these rights are not absolute, there is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere. The Court reaffirms that the margin in this area is wide. There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe .
It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions imposed on the rights to vote or to stand for election do not curtail the exercise of those rights to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, any such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage
Turning to the present case, the Court notes that the applicant complained of a breach of his right to free elections due to the lack of clarity on the part of the authorities regarding the use of a Kurdish song during his election campaign. In this connection, the Court observes that by applying to the Ardahan District Electoral Council, the applicant was merely making an enquiry before the national authorities to determine whether playing a song in Kurdish would constitute a crime. It also observes that the applicant explicitly referred to the decision of the Court of Cassation which had concluded that playing or singing a Kurdish song did not constitute a crime under domestic law. In reply, the District Electoral Council concluded that this matter did not fall within its jurisdiction but fell within the jurisdiction of the public prosecutors and the criminal courts. The Court considers that as the applicant is a lawyer he should have known that the Electoral Council had no authority to give an approval to his request. His complaints before the Court as well as the domestic authorities were therefore purely abstract. Even if, at the material time, Section 58 of Law No. 298 stipulated that the election campaign could only be done in the Turkish language and that this provision applied to all political parties and candidates without any exception, it appears that playing a song in Kurdish would not have constituted a criminal offence. This is supported by the decision of the Court of Cassation, referred to above, of which the applicant was fully aware. In any event, the Court notes that no criminal proceedings were initiated against the applicant. In particular, he was able to stand in the elections as an independent candidate and there is no allegation that the applicant was prevented from conveying his political and social opinions to the public during the election campaign.
In view of the foregoing considerations, the Court finds that the applicant’s electoral rights were not curtailed to such an extent as to significantly impair their effectiveness. The case file does not reveal any disproportionate acts that would undermine the very substance of free expression of the opinion of the people or of the applicant’s right to stand in elections for the purposes of Article 3 of Protocol No. 1.
There has accordingly been no violation of Article 3 of Protocol No. 1 to the Convention.
