Even though the main opposition Republican People's Party (CHP) leadership announced that they will appeal to the European Court of Human Rights (ECtHR) regarding the April 16 constitutional amendment referendum results, experts have said that the ECtHR has no jurisdiction regarding referendums and, therefore, the CHP's appeal is in vain due to this technicality, calling CHP Chairman Kemal Kılçdaroğlu's move to appeal to the ECtHR part of his strategy to keep those opposed to the referendum united.
CHP Chairman Kılıçdaroğlu announced on Tuesday that he will challenge the country's April constitutional referendum result at the ECtHR, saying: "We have prepared our petition. We are applying to the ECtHR," placing his signature on the petition as the first to sign the document. Kılıçdaroğlu's argument is that the April 16 referendum, which sgifted the country to a presidential regime from the parliamentary system was the result of "illegitimate a Supreme Elections Board (YSK) decision to accept unsealed ballots on the night of the vote.
Cem Duran Uzun, a constitutional lawyer and the director of law and human rights at the Foundation for Political, Economic and Social Research (SETA) said that the CHP's application to the ECtHR is in vain on a technicality, asserting that the court has no jurisdiction regarding referendums. "The ECtHR Annex Protocol No. 1, Article 3 clearly states that the court can only accept applications regarding general elections and that the court has no jurisdiction over referendums, local elections or even presidential elections," he said.
The ECtHR Annex Protocol No. 1 Article 3 says: "High contracting parties undertake the holding of 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."
Uzun says that it would be impossible to get a ruling from the ECtHR regarding a referendum in Turkey, and even if the ECtHR were to make a decision, it would be a violation of the protocol. Providing examples of similar incidents in the past, Uzun said that since the 1970s, the ECtHR has consistently rejected such appeals, with the most recent example seen in 2013 in the case of McLean and Cole v. the U.K. 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 the case, the court "unanimously declared the applications inadmissible and the decision was made final."
Turkey's April 16 referendum resulted in a victory for "yes" voters with 51.4 percent of the vote, resulting in the filing of an appeal from the CHP contesting the result with the Council of State and the Constitutional Court. However, both of these high courts ruled that the CHP's appeal was not within their jurisdiction. The CHP's decision to appeal to the ECtHR could receive the same decision as its previous attempts.In addition, Uzun said that the U.K. had previously taken the 1975 EU referendum to the ECtHR, which was immediately rejected by the court on the basis that it was outside its 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 v. Italy in 1998 and Hilbe v. Liechtenstein in 1999.
Commenting on the issue, ruling Justice and Development Party (AK Party) spokesman Mahir Ünal said the CHP is trying to create new tension in domestic politics, claiming this to be the main reason for the CHP's decision to appeal.
"The CHP is trying to stir a legal and political crisis with its application to the ECtHR. Its only aim is to create new turmoil and situate itself in the part of politics that would benefit from that crisis," Ünal said on Tuesday. "Kılıçdaroğlu's CHP is good at fabricating crises and they will continue to do so," he said.
Tanju Tosun, an academic at Ege University who specializes in CHP politics also believes that the appeal might be part of his strategy to keep the no bloc alive. "I believe that the real reason for this appeal is to keep the voice of those opposed [to the referendum] alive and united rather than focusing to the potential ECtHR result," Tosun said. "However, I don't think that their appeal is entirely meaningless. They [the CHP] believe that there is a small possibility that they can get a favorable result from the ECtHR."
Prior to the CHP's announcement, Justice Minister Bekir Bozdağ told Daily Sabah in an interview that "[the main opposition] can appeal, but won't be able to realize a result in their favor. Precedents have already been set. As we have seen with the municipal elections of 2014. Such indicators show 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."
Bozdağ asserted that one can only appeal to the ECtHR over irregularities in judicial elections and nothing else. "Therefore, appealing municipal elections, parliamentary elections or referendums will only result in rejection," he added.
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