Constitutional Court of the Republic of Turkey Anayasa Mahkemesi
Press Release No: Plenary Assembly 13/18
06.06.2018

PRESS RELEASE CONCERNING THE DECISION DISMISSING THE REQUEST FOR ANNULMENT OF CERTAIN PROVISIONS OF ELECTION LAW

The Constitutional Court dismissed the request (case-file no. E.2018/69) for annulment of certain provisions of the Law No. 7102, dated 13 March 2018 (Amending the Election Law and Certain Other Laws) at its meeting dated 31 May 2018. The summary of the reasoning on certain provisions is provided below.

A. Registration of the Voters Living in the Same Building in Different Polling Stations

Provision Requested to Be Annulled

According to the contested provision, the voters living in the same building may be registered in different polling stations, on the condition that their household’s entirety is protected and that they remain within the same electoral district.

Grounds for the Request for Annulment

In the petition, it is maintained that the contested provision eliminates the possibility for the voters who live in the same building and know each other to check the voter lists and causes difficulties in accessing ballot boxes. Therefore, it is in breach of Articles 67 and 79 of the Constitution.

The Court’s Assessment

The expression of “in conformity with the conditions set forth in the law” in formulation of the right to vote and to be elected in Article 67  points out that the exercise of these rights might be subject to certain conditions and regulations. The laws in accordance with Article 67 must also be in conformity with Article 13 of the Constitution, which sets out the legal regime for restricting fundamental rights and freedoms.

The contested provision empowers the authorities with discretion to register voters living in the same building in different polling stations. However, the provision entails two conditions. Although the voters who live in the same building may be registered in different polling stations, the entirety of their households must be protected and these different polling stations must be within the same electoral district.

According to Article 4 of Law no. 298, it is clear that each neighbourhood shall be regarded as one electoral district, and that given that the voters living in the same house will be registered in the same polling station, registration of the voters living in the same building in a different polling station in the same neighbourhood cannot be considered as an arrangement which hinders the right to vote or restricts it to the extent that renders it futile.

Furthermore, it cannot be said that registration of the voters who live in the same building in different polling stations would cause exposure of electoral choices of voters and therefore would adversely affect vote of their own free will. Consequently, the contested provision does not contravene the principle of free election.

Consequently, the Court has dismissed the annulment request as it has found no violation of Articles 13, 67 and 79 of the Constitution.

B. Relocation of the Ballot Boxes for Election Safety

Provision Requested to be Annulled

The contested provision stipulates that in cases where it is considered necessary for election safety and the Governor or the Head of the Provincial Security Directorate makes a request at least a month before the election date, the Supreme Election Board (YSK) shall have discretion to decide on relocating the ballot boxes to the nearest electoral district, merging the electoral districts and making mixed lists of voters–except for elections of neighbourhood head.

Grounds for the Request for Annulment

In the petition, it is maintained that the contested provision grants a wide discretion to the administration which would make it difficult to access the ballot boxes and to audit electoral process is in breach of Articles 7, 13, 67 and 79 of the Constitution.

The Court’s Assessment

As the contested provision grants power to the YSK that may subject a voter to a ballot box that is located in a different and farther place from the default, it is clear that exercise of this power will result in the restriction of the right to vote.

The reason for this restriction is the safety of election.

However, it does not suffice that the restriction on the right to vote pursues a legitimate aim, it must also be proportionate.

It is explicit that it is the State’s duty to remove the obstacles before the exercise of the right to vote; and that in this context, it is a requisite to take necessary measures in respect of difficulties likely to occur in case of relocation of ballot boxes and merging of ballot boxes or electoral districts. Besides, ballot boxes may not be relocated to any electoral district but only to the closest electoral districts (neighbourhood unit). Electoral districts may be merged only when they are within the same electoral constituency. Moreover, the measures specified in the provision may be resorted only if required for securing the safety of elections and in proportion to the gravity of the threat to electoral safety. Therefore, it has been concluded that the restriction envisaged in the contested provision on the right to elect is proportionate and does not impose an excessive burden on individuals.

For the reasons explained above, the Constitutional Court found that the contested provision is not contrary to Articles 7, 13, 67 and 79 of the Constitution and dismissed the request for its annulment.

C. Validity of Ballot Papers and Envelopes Not Bearing the Seal of Balloting Committee

Provisions Requested to be Annulled

In the last paragraphof Article 98 § 4 of Law no. 298, it is set out that ballot envelopes bearing no seal of the balloting committee shall be deemed valid if they bear the YSK’s watermark and logo as well as the seal of the district election board. The phrase of “…in spite of not bearing…” in the said sentence constitutes the contested provision.

In the sub-paragraph 7 added to Article 101 § 2 of Law no. 298, it is set forth that if ballot papers sent by the authorized election boards and bearing the YSK’s watermark have no seal on the reverse side due to negligence of the balloting committees, they shall not be deemed invalid. The phrase of “if ballot papers … have no seal on the reverse side due to the negligence of the balloting committees” constitutes the second contested provision.

Grounds for the Request for Annulment

It is maintained in the requests for annulment that the contested provisions deem sufficient the YSK’s watermark and logo as well as the seal of the district election board, however, these cannot afford the assurance provided by seal of the balloting committee– and the provisions are incompatible with the principles of free election and fairness and therefore in breach of Articles 67 and 79 of the Constitution. 

The Court’s Assessment

The principles of free election and electoral fairness necessitate not only establishment of an environment that enables voters to cast a vote of their own free will but also taking of measures to secure and soundly determine the electoral results. The measures to be taken in this respect are within the discretionary power of the legislator. However, such measures must be efficient and sufficient for securing, sound determination and materialization of the voters’ free will.

The contested provisions do not abolish the requisite that ballot envelopes bear the seal of the balloting committee but introduce an exception to this requisite only under certain circumstances. The legislator has introduced the contested provision by considering that the voters must not be burdened with the consequences to occur due to negligence on the part of the balloting committee. Nevertheless, head and members of the balloting committee are still liable for non-fulfilment of their legal obligation to seal the ballot papers and envelopes.

Moreover, it appears that further measures with regard to pre-, during and post-election period are introduced in Law no. 298 in order to ensure securing and sound determination of the voters’ will.

Considering all measures envisaged for securing, sound determination and materialization of the voters’ will, particularly the measures concerning each electoral stage to prevent electoral fraud and infraction such as use of forged ballot papers or change of ballot papers and also the watermark and logo of YSK as well as seal of the district election board on ballot envelopes, it has been concluded that accepting as valid the ballot envelopes lacking the balloting committee’s seal is not in contradiction with the principles of free election and electoral fairness. 

For the reasons explained above, the Court concluded that the contested provisions are not contrary to Articles 67 and 79 of the Constitution and accordingly dismissed the requests for annulment.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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