SECOND SECTION
DECISION
Application no. 33969/15
Fikret AKOVA
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 September 2016 as a Committee composed of:
Ksenija Turković, President,
Jon Fridrik Kjølbro,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 3 July 2015,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Fikret Akova, is a Turkish national, who was born in 1953 and lives in Balıkesir. He was represented before the Court by Mr A.N. Akova, a lawyer practising in Balıkesir.
A. The circumstances of the case
1. The facts of the case, as submitted by the applicant, may be summarised as follows.
2. The applicant ran in in the municipal elections of 30 March 2014 in Turkey as candidate for the People’s Republican Party (Cumhuriyet Halk Partisi – “the CHP”) for the offıce of mayor of Burhaniye Municipality.
The results announced by the National Electoral Commission (Yüksek Seçim Kurulu – “the YSK”) showed that the applicant got 13,523 votes while one of his opponents, Mr N.U., a member of the Justice and Development Party (Adalet ve Kalkınma Partisi – “the AKP”) obtained 13,681 votes. Total number of votes was 35,591 and 1,562 votes were declared invalid.
3. On 1 April 2014 the applicant filed a complaint about the election results with the Burhaniye District Election Board (hereinafter referred to as “the DEB”), in which it claimed, inter alia, that the members of the ballot box committees had failed to perform their duties, i.e. they did not stamp the ballots correctly which resulted in some votes to be declared invalid. The applicant asked the DEB to examine and count the invalid votes again.
4. On the same date, the DEB rejected the applicant’s complaint and held that the declaration of some votes as invalid was in line with the relevant legislation. It further held that the applicant had failed to submit concrete evidence to support his allegations.
5. On 3 April 2014 the applicant objected to this decision and submitted the identical complaints to the Balıkesir Provincial Election Board (hereinafter referred to as the “the PEB”).
6. On 4 April 2014 the PEB dismissed the applicant’s objections as unfounded referring to the reasoning of the DEB.
7. On 7 April 2014 the applicant filed a complaint before the National Electoral Commission. On 13 April 2014 this complaint was rejected as well.
8. On 13 May 2014 the applicant lodged an application with the Constitutional Court and alleged before it that his rights under Article 6 of the Convention and Article 3 of Protocol No. 1 to the Convention had been violated.
9. On 31 December 2014 the Constitutional Court declared the application inadmissible as being incompatible rationae materiae with the provisions of the Convention.
B. Relevant domestic law
10. Article 7 of the Constitution provides:
“Legislative power is vested in the Turkish Grand National Assembly on behalf of the Turkish Nation. This power cannot be delegated.”
11. Article 67 of the Constitution, as amended on 23 July 1995 and 17 October 2001, provides:
“Citizens shall have the right to vote, to stand for election, to engage in political activities independently or as members of a political party and to take part in referenda in accordance with the rules laid down by law.
Elections and referenda shall be conducted under the administration and supervision of the judiciary and in accordance with the principles of free, equal, secret and universal suffrage, in a single round of voting, the votes cast being counted and recorded in public. Nevertheless, the law shall make suitable provision for Turkish citizens resident abroad to be able to exercise their right to vote.
Every Turkish citizen of at least eighteen years of age shall have the right to vote and to take part in referenda.
Exercise of these rights shall be regulated by law.
Serving members of the armed forces, officer cadets and persons serving prison sentences, other than those convicted of an unintentional offence, shall be deprived of the right to vote.
The National Electoral Commission shall determine the measures to be taken to guarantee the security of the operations to count and record the votes in prisons and remand centres, and those operations shall be conducted in the presence of the competent judge, who shall take charge of and supervise them.
Electoral laws must reconcile fair representation with governmental stability.
Amendments to electoral laws shall not be applicable to elections taking place during the year following their entry into force.”
COMPLAINTS
12. The applicant complained under Article 6 of the Convention that his right to a fair trial had been violated because his complaints of irregularities and fraud in the municipal elections had been arbitrarily rejected by the relevant bodies, namely the electoral bodies and the Constitutional Court.
13. He further argued that the electoral fraud had not been corrected by the Constitutional Court because the latter had adopted a restrictive interpretation of the term “elections” in Article 67 of the Constitution and had declared his complaints concerning the 2014 municipal elections inadmissible as being incompatible ratione materiae with the provisions of the Convention.
THE LAW
A. Alleged unfairness of the proceedings
14. The applicant complained that his complaints concerning the electoral fraud and irregularities in the election process had not been duly examined before the electoral bodies and the Constitutional Court. In this respect, he alleged a violation of his right to a fair trial under Article 6 of the Convention. Article 6 provides, insofar as relevant, as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
15. The Court observes that the proceedings in which the applicant’s complaints were examined concerned the validity of the municipal elections in Burhaniye and subsequently the applicant’s right to occupy the post of mayor. Such proceedings were related to a dispute on political rights and not to the applicant’s civil rights which are within the scope of Article 6 of the Convention (see, in the context of parliamentary elections, Pierre-Bloch v. France, 21 October 1997, § 50, Reports of Judgments and Decisions 1997‑VI; in the context of local elections see Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000‑I; and in the context of both parliamentary and municipal elections see Valentin Gorizdra v. Moldova (dec.) no. 53180/99, 2 July 2002).
16. Hence, Article 6 does not apply to the proceedings complained of.
17. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
B. Failure of the national bodies to correct alleged electoral fraud
18. The applicant complained that the alleged electoral fraud had not been corrected by the electoral bodies and the Constitutional Court. He maintained, in particular, that the Constitutional Court, by interpreting the term “elections” in Article 67 of the Constitution narrowly and declaring his complaint related to the 2014 municipal elections inadmissible had violated his rights under Articles 6 and 53 of the Convention.
19. 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). It considers that this part of the applicant’s complaint relates mainly to a dispute arising out of the 2014 municipal elections. The complaint is therefore to be examined under Article 3 of Protocol No. 1 to the Convention alone, which provides 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.”
20. Article 3 of Protocol No. 1 protects the right of the people to choose the legislature by means of free elections (Booth-Clibborn and Others v. the United Kingdom, no. 11391/85, Commission decision of 5 July 1985, Decisions and Reports (DR) 43, p. 236). The word “legislature” does not necessarily mean the national parliament: it has to be interpreted in the light of the constitutional structure of the State in question (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 53, Series A no. 113, and Matthews v. the United Kingdom [GC], no. 24833/94, § 40, ECHR 1999-I).
21. According to the Court’s established case-law, municipal elections for organs which do not form part of the legislature in the country concerned fall outside the scope of Article 3 of Protocol No. 1 (X. v. the United Kingdom, no. 5155/71, Commission decision of 12 July 1976, DR 6, p. 13; Cherepkov v. Russia, cited above; Malarde v. France (dec.), no. 46813/99, 5 September 2000; Salleras Llinares v. Spain (dec.), no. 52226/99, ECHR 2000-XI; Valentin Gorizdra, cited above; Santoro v. Italy, no. 36681/97, 16 January 2003 and Mółka v. Poland (dec.), no. 56550/00, ECHR 2006‑IV).
22. The Court must therefore determine whether municipalities can be regarded as constituting part of the legislature of Turkey. In this connection, the Court observes that in Uçar and others v. Turkey ((dec.), no. 4692/09, 24 June 2014) it held:
“... the Constitution of Turkey confers the exercise of legislative power on the Turkish Grand National Assembly, that is, the Parliament (see Article 7 of the Constitution). Moreover, municipalities in Turkey are the repositories of powers of an administrative nature concerning the organisation and provision of local services. ... Thus, they do not exercise legislative power within the meaning of the Constitution of Turkey. The Court therefore concludes that municipalities do not form part of the legislature of Turkey”.
23. The Court notes in the present case that the applicant complained about the municipal elections of 30 March 2014. In the light of the finding in the above case, it is clear that municipalities and mayors in Turkey do not exercise legislative power and do not therefore form part of the “legislature” within the meaning of Article 3 of Protocol No. 1. Accordingly, elections to such bodies do not fall within the scope of Article 3 of Protocol No. 1 to the Convention.
24. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 6 October 2016.
Hasan BakırcıKsenija Turković
Deputy RegistrarPresident
Full & Egal Universal Law Academy