ECtHR has no jurisdiction over Turkey's referendum, despite CHP appeal

MERVE AYDOĞAN @mgulaydogan
Published 27.04.2017 23:48
Updated 27.04.2017 23:49
CHP spokesperson Selin Sayek Böke said, “We will apply to the ECtHR in the coming days,” during the party’s executive meeting in Ankara on Wednesday.
CHP spokesperson Selin Sayek Böke said, “We will apply to the ECtHR in the coming days,” during the party’s executive meeting in Ankara on Wednesday.

The main opposition Republican People's Party (CHP) announced on Wednesday afternoon that it would appeal to the European Court of Human Rights (ECtHR) regarding the April 16 constitutional amendment referendum results, but legal experts have emphasized that the ECtHR has no jurisdiction regarding elections, according to the ECtHR Article 3 of Protocol No. 1 that clearly states that countries have the right to free elections.

Addressing members of the media at a press conference after the CHP's weekly Central Executive Committee meeting, CHP spokesperson Selin Sayek Böke said, "We will apply to the ECtHR in the coming days."

The CHP decision came shortly after Turkey's highest administrative court rejected the main opposition's request to overturn the result of the April 16 referendum on the constitutional reform package by a large majority on Tuesday. The Council of State ruled that the CHP's appeal was not within its jurisdiction.

Prior to the CHP's announcement, Justice Minister Bekir Bozdağ spoke to Daily Sabah in an interview saying, "[The main opposition] can appeal, but they won't be able to realize a result in their favor. Precedents have already been set; as we saw with the municipal elections of 2014 that indicate that when you appeal to the ECtHR on such issues, your application will be rejected as such matters are outside of the court's jurisdiction."

Minister Bozdağ further stated that one can only appeal to the ECtHR for irregularities regarding judicial elections and nothing else. "Therefore, appealing for municipal elections, parliamentary elections or referendums will only result in rejection," he added.

Commenting on the matter, Cem Duran Uzun, a constitutional lawyer and the director of Law and Human Rights at the Foundation for Political, Economic and Social Research (SETA Foundation) affirmed that it is impossible to get a decision from the ECtHR regarding a referendum noting, "The ECtHR will reject the appeal in the initial phase because in order to appeal to the ECtHR, there must be a violation of the ECtHR agreement or a violation of other protocols." Uzun further drew attention to the ECtHR's Article 3 of Protocol No. 1, stressing that "It clearly ensures in full confidence the freedom of expression of opinion that is the inalienable right of the people regarding the choice of the legislature."

In fact, Article 3 from Protocol No. 1 says, "The high contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions that will ensure the freedom of the expression of opinion by the people in the choice of the legislature." Thus, Uzun underlined that it is "impossible" to get a ruling from the ECtHR regarding a referendum in Turkey, stressing that even if ECtHR were to make a decision it would then be a "violation" of the signed protocol itself. Providing examples of similar incidents in the past, Uzun said that since the 1970s the ECtHR has rejected such appeals consistently, adding that the most recent example of this was seen in 2013 in the case of McLean and Cole V. the United Kingdom in which the court ruled that a blanket ban would be placed on voting in elections. According to a press release provided by the ECtHR on McLean and Cole, the court "unanimously declared the applications inadmissible and the decision was made final."

Similarly, Uzun said that the 1975 EU referendum was previously taken to the ECtHR by the U.K. and was immediately rejected by the court on the basis that it was outside of their jurisdiction. Uzun went on to note that similar rulings have been made in such cases as Bader V. Germany (Case No. 26633/95) in 1996, Castelli (and others) V. Italy in 1998 and Hilbe V. Liechtenstein in 1999. Echoing the words of Uzun, Serdar Gülener, an expert in constitutional law from Sakarya University, also underlined that rulings on "legislation" are out of the boundaries of the ECtHR. Gülener stated that even if the ECHR called on Turkey to hold another referendum, doing so "would be unbinding."

Continuing on by providing the unlikely case scenario, Gülener indicated the ECtHR would either reject the appeal while taking advisory action or it would rule in favor of the CHP and the latter would be awarded monetary compensation. However, he noted that either decision would be described as "politically motivated;" especially considering Europe's current stance against Turkey. Another prominent expert on constitutional law Kemal Gözler recently said in his column that "One cannot appeal to the [ECtHR] for the YSK's April 16, 2017 No.560 decision." Gözler also reminded the readers of the Article 3 from the Protocol No. 1 and said unless a violation is made against the protocol or to any agreements one cannot appeal for referendums.

Thus, since the ECtHR's ruling in the case of a referendum appears to be self-evident, one can question the reason why the main opposition CHP would seek to appeal the decision of Turkey's Supreme Election Board (YSK). On that note, with the CHP pulling every possible trick in the book it attempts to display itself as the protector of the national will, Uzun said the move to appeal to the ECtHR regarding Turkey's referendum result is the CHP's last-ditch effort to try to block politics in the country. "It is in CHP's political tradition to choke up Turkish politics by appealing to judicial organs," he added.

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