Information Note on the Court’s case-law No. 173
April 2014
Oran v. Turkey - 28881/07 and 37920/07
Judgment 15.4.2014 [Section II]
Article 3 of Protocol No. 1
Free expression of opinion of people
Stand for election
Inability of non-resident electors to vote for independent candidates in polling stations installed in customs offices: no violation
Lack of airtime on national radio and television for independent – as opposed to party political – candidates: no violation
Article 14
Discrimination
Inability of non-resident electors to vote for independent candidates in polling stations installed in customs offices: no violation
Lack of airtime on national radio and television for independent – as opposed to party political – candidates: no violation
Facts – The applicant stood for election in the parliamentary elections of 22 July 2007 as an independent candidate, but was not elected. He lodged two applications with the Court which were joined and examined together.
The first application concerned the fact that, by law, voters could vote only for political parties, and not for independent candidates like the applicant, in the polling stations set up at customs posts. In a decree issued on 27 May 2007 the National Electoral Commission stated that citizens who had lived abroad for more than six months could vote only for political parties in those polling stations. On 3 July 2007 the applicant applied to the National Electoral Commission seeking to have the decree annulled. On 4 July 2007 the Electoral Commission refused his request.
The second application concerned the fact that, under the electoral legislation, political parties participating in the elections could campaign on national radio and television, whereas, according to the applicant, independent candidates who, like him, were not affiliated to any political party as a matter of principle were barred from doing so.
Law – Article 3 of Protocol No. 1
(a) Inability of non-resident voters to vote for independent candidates without a party ticket in the polling stations set up at customs posts – Domestic practice was far from uniform in the Contracting Parties with regard to voting rights for expatriate nationals and the exercise of those rights. Generally speaking, Article 3 of Protocol No. 1 did not require the Contracting Parties to enable their citizens living abroad to exercise the right to vote*. Furthermore, it was clear from the work of the Venice Commission that a refusal to grant the right to vote to citizens living abroad or the placing of limits on that right did not constitute a restriction of the principle of universal suffrage. It was necessary to balance the various interests at stake, such as the choice made by a State to allow expatriate citizens to exercise the right to vote, the practical and security-related considerations linked to the exercise of that right and the technical means of achieving it.
The reason given by the national legislature for limiting the right to vote in the case of voters living abroad had been the fact that it was not possible to create a separate constituency for expatriate voters or to assign them to an existing constituency, whereas voters living in the country voted in a particular constituency, namely the one where they were resident. The legislature had considered it legitimate to calculate the votes cast by expatriates as part of the total vote for political parties within the country.
The Constitutional Court, in its judgment of 22 May 1987, had found those reasons to be compatible with the Constitution. It had ruled that, faced with the difficulty of establishing voting rights for citizens who had lived abroad for more than six months in a particular constituency alongside voters living in the country, the option chosen by the legislature, consisting in allowing expatriate voters to vote only for political parties and not for independent candidates, had struck a fair balance between the interests of expatriate voters and those of voters living in the country.
The limitation in question had to be construed in the light of the residence criterion for voters living abroad and the reasons given by the Constitutional Court. It also had to be assessed with due regard for the general restrictions that were accepted in relation to expatriate voting rights, and in particular the legitimate concern the legislature might have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affected persons living in the country. A further factor was the role played by political parties, which were the only groupings that could accede to power, and which had the capacity to influence the entire system in their countries. Moreover, the limitation had pursued two other legitimate aims: enhancing democratic pluralism while preventing the excessive fragmentation of the vote, and strengthening the expression of the opinion of the people in the choice of the legislature.
In view of the foregoing considerations, the limitation reflected the legitimate concern of the legislature to ensure the political stability of the country and of the government that would be in charge following the elections. Consequently, taking into consideration the wide margin of appreciation left to the respondent State in the matter, the treatment complained of by the applicant as an independent candidate without a party ticket had been based on objective and reasonable grounds.
Accordingly, there had been no infringement in the instant case of the very essence of the right to the free expression of the opinion of the people or of the applicant’s right to stand for election, for the purposes of Article 3 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention.
Conclusion: no violation (four votes to three).
(b) Inability of independent candidates without a party ticket to campaign on national radio and television (TRT), unlike the political parties – The National Electoral Commission had issued a decision on 4 May 2007 stating that the political parties could campaign on TRT ahead of the parliamentary elections of 22 July 2007, but that independent candidates without a party ticket, like the applicant, could not.
It was in the nature of their role that political parties, the only groupings that could accede to power, had the capacity to influence the entire system in their countries. Hence, their election campaigning was not confined to the particular constituency in which they were fielding a candidate but extended over all the constituencies taken as a whole. By contrast, independent candidates running without a party ticket, like the applicant, addressed their message only to the constituency in which they were standing.
The applicant had not been a member of a political grouping and had not stood for election as an independent candidate on the ticket of a political party with a view to circumventing the national electoral threshold of 10%** and securing his grouping’s election to the National Assembly by indirect means. Accordingly, the Court was not convinced that the applicant on the one hand, as an independent candidate without a party ticket, and the political parties on the other hand could be said to be in “comparable situations” for the purposes of Article 14 of the Convention.
At the parliamentary elections of 22 July 2007 several hundred independent candidates had stood for election in various constituencies throughout the country. Weighing the electoral process as a component of the democratic system against regulation of the public funding of that process during an election period, the Court found that the applicant had not been prevented from campaigning in the constituency where he had stood as an independent candidate. Although he had been unable to campaign for election on TRT, which broadcast nationwide, he had not been barred from using any of the other means of campaigning available to all independent candidates without a party ticket at the relevant time. Accordingly, the measure complained of had been based on objective and reasonable grounds.
Hence, after the various interests at stake had been weighed up, the fact that the applicant, in his capacity as an independent candidate without a party ticket, had been unable, unlike the political parties, to campaign on TRT during the 2007 parliamentary elections was found to be compatible with the requirements of Article 3 of Protocol No. 1. The measure in question, as applied to the applicant, did not amount to disproportionate interference with the very essence of the right to the free expression of the opinion of the people or with the applicant’s right to stand for election, for the purposes of Article 3 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention.
Conclusion: no violation (four votes to three).
The Court also held unanimously that there had been no violation of Article 13, as that provision did not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention.
* Sitaropoulos and Giakoumopoulos v. Greece [GC], 42202/07, 15 March 2012, Information Note 150.
** As regards the requirements for political parties to reach the threshold of 10% of the national vote in order to be represented in Parliament, see Yumak and Sadak v. Turkey [GC], 10226/03, 8 July 2008, Information Note 110.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy