Press Release No: Individual Application 17/17
07.07.2017

PRESS RELEASE ON THE DECISION CONCERNING THE ALLEGED VIOLATION OF THE RIGHT TO ELECT DUE TO THE SUPREME ELECTION COUNCIL’S DECISION OF 16 APRIL 2017 ON THE REFERENDUM

On 7 June 2017, the First Section of the Constitutional Court declared the individual application lodged by Nurullah Efe and the People’s Liberation Party (“Halkın Kurtuluş Partisi”) (App. No: 2017/20127) inadmissible for lack of jurisdiction ratione materiae.

The Facts

While the referendum dated 16 April 2017 was going on, the Supreme Election Council announced, with the respect to the complaints that certain balloting committees had delivered the voting papers and envelopes to the electros without affixing the seal of these committees, that the voting papers and envelopes not bearing the balloting committees’ seals were deemed to be valid unless it was proven that they had been obtained outside and used. The reasoned decision in respect thereof was published on the web-site of the Supreme Election Council on 18 April 2017.

The Applicants’ Allegations

The applicants maintained that the decision taken by the Supreme Election Council with regard to the unsealed voting papers and envelopes was in breach of the Law, the principles of legal security and legal certainty. They accordingly asserted that there had been a violation of the right to elect enshrined in Article 67 of the Constitution and the right to an effective remedy in conjunction therewith.  

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this allegation:

In order to lodge an individual application within the scope of the right to participate in a referendum enshrined, as a constitutional right, in Article 67 § 1 of the Constitution, it is requisite that this right is also safeguarded by the Convention or its additional protocols to which Turkey is a party. The European Court of Human Rights (“the ECtHR”) noted that the safeguards afforded by the right to free elections enshrined in Article 3 of the Additional Protocol no. 1 of the Convention must be applicable not only in the national parliamentarian elections but also in the elections of the other organs, national or international, which are - by their sui generis nature - considered to enjoy legislative power, given the nature of powers such organs have. Moreover, pursuant to the well-established case-law of the ECtHR, the safeguards afforded by the right to free elections enshrined in the above-mentioned article are, in essence, limited to the elections of the organs having legislative power, and referendums do not fall into the scope of Article 3 of the Additional Protocol no. 1 to the Convention.  

In this sense, the alleged violation of the right to free elections as a result of the impugned referendum, which falls outside the scope of Article 3 of the Additional Protocol no. 1, does not concern a right which is under the joint protection of the Constitution and the Convention.

On the other hand, as the decisions of the Supreme Election Council are excluded from judicial review pursuant to Article 79 § 2 of the Constitution, the applicant’s allegations cannot be subject-matter of an individual application, also pursuant to Article 45 § 3 of the Law on the Establishment and Rules of Procedures of the Constitutional Court dated 30 March 2011 and numbered 6216 which prescribes that acts and actions that have been excluded from judicial review by the Constitution cannot constitute subject-matter of an individual application.  

Consequently, the Constitutional Court declared the application inadmissible for lack of jurisdiction ratione materiae, without making further examination as to the other admissibility criteria

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

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