Cumhuriyet Halk Partisi v. Turkey (dec.)

Information Note on the Court’s case-law 213

December 2017

Cumhuriyet Halk Partisi v. Turkey (dec.) - 48818/17

Decision 21.11.2017 [Section II]

Article 35

Article 35-3-a

Ratione materiae

Constitutional Referendum did not fall within scope of Article 3 of Protocol No. 1: inadmissible

Facts – In April 2017 a binding Constitutional Referendum was held in Turkey. Before the European Court, the applicant, a political party based in Ankara, complained under Article 3 of Protocol No. 1 that the Government had failed, inter alia, to ensure the free expression of the opinion of the people in the choice of legislature, the separation of powers, the independence of the judiciary and the rule of law.

Law – Article 3 of Protocol No. 1: The applicant party argued that the Constitutional Referendum should be considered to fall within the scope of Article 3 of Protocol No. 1 as a result of the far-reaching nature of the changes it introduced into the Turkish parliamentary system.

It was true that Article 3 of Protocol No. 1 enshrined a characteristic principle of an effective democracy and was accordingly of prime importance in the Convention system. Democracy constituted a fundamental element of the “European public order”, and the rights guaranteed under Article 3 of Protocol No. 1 were crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law.

However, 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 its wording was a strong indication of the limits of an expansive, purposive interpretation of its applicability. The object and purpose of the provision had to be ascertained by reference to the wording used in the provision. Importantly, such a textual interpretation had recently been reconfirmed by the Court in Moohan and Gillon v. the United Kingdom, which concerned a secession referendum, where the Court held that “the choice of legislature” did not necessarily include “the type of legislature” and rejected the argument that the referendum, albeit of vital importance for an effective political democracy, fell within the scope of Article 3 of Protocol No. 1.

In the light of the above considerations and its settled case-law on the applicability of Article 3 of Protocol No. 1, the wording of that provision − taking into account its ordinary meaning in context as well as its object and purpose − precluded the possibility of the Court’s adopting an expansive interpretation of the provision which would include referendums. The purpose of the Constitutional Referendum in Turkey had been, in substance, to decide whether the President of Turkey should be accorded extensive powers within a new constitutional system of government. Accordingly, the Referendum did not amount to an “election” within the meaning of Article 3 of Protocol No. 1.

Conclusion: inadmissible (incompatible ratione materiae).

The Court also concluded that the applicant’s complaint under Article 13 of the Convention taken in conjunction with Article 3 of Protocol No. 1 was inadmissible ratione materiae as the main complaint lay outside the material scope of the Convention.

(See Moohan and Gillon v. the United Kingdom (dec.), 22962/15 and 23345/15, 13 June 2017, Information Note 209)

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