ECtHR rejects CHP’s application against April 16 Presidential referendum in Turkey

The European Court of Human Rights (ECtHR) has declared on Thursday that Turkey’s main opposition Republican People’s Party’s (CHP) complaint about April 2017 referendum on President’s powers inadmissible.

The court ruled that the referendum did not fall under the jurisdiction of the ECtHR convention. “In view of its conclusion concerning the applicant party’s complaints under Article 3 of Protocol No. 1 to the Convention, the Court thus considers that this complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must accordingly be rejected in accordance with Article 35 § 4. For these reasons, the Court, by a majority, Declares the application inadmissible,” ECtHR stated.

According to ECtHR’s statement on Thursday, the case of “Cumhuriyet Halk Partisi v. Turkey (application no. 48818/17)” concerned a complaint by a Turkish opposition party about the referendum held on 16 April 2017, on the modification and repeal of constitutional provisions dealing with presidential powers. In its decision in the case the ECtHR has by a majority declared the application inadmissible. The decision is final.”

The statement said that “The party’s main argument was that the referendum should be considered to fall within the scope of Article 3 of Protocol No. 1 (right to free elections) as a result of the far-reaching nature of the changes it introduced into the Turkish parliamentary system and their inextricable link to the concept of effective political democracy in Turkey. It also alleged that the Government had failed to ensure the free expression of the people’s opinion in the choice of legislature, the separation of powers, the independence of the judiciary and the rule of law.”

However ECtHR has noted that the provision of the European Convention in question referred to “free elections at reasonable intervals” and “the choice of the legislature.” As such, it was clear that the ordinary meaning of the word “elections” meant that the Article did not refer to referendums, which were limited to a particular time and a particular subject.

“It also examined the party’s argument that the fundamental nature of the changes involved meant that a referendum of the kind held in Turkey should be considered as part of the right to free elections. However, the Court emphasised that the text of the Convention provision did not allow for an expansive interpretation of the applicability of the provision,” added the ECtHR.

A referendum was held in Turkey on 16 April 2017, which significantly expanded the powers of the office of the President, including the power to dissolve parliament, to appoint and dismiss vice- presidents and ministers and other high-level State officials, including judges of the Constitutional Court.

On the day of the referendum, while some of the votes were being counted, the National Electoral Commission received information that stamps had been used in some polling stations that had the word “yes” on them rather than “choice”. The Commission decided on the same day that such stamps were valid. The Commission was also later told that some ballot papers and envelopes had lacked the necessary seals. It subsequently declared such envelopes and papers valid throughout the country.

The result of the referendum showed that just over 54 percent of people who voted backed all constitutional changes while just over 48 percent voted against. Turnout was approximately 85 percent.

“The applicant party complained about the referendum to the Commission, asking to have it declared invalid. It argued that the Commission had breached the law by allowing the ballots without seals. It noted that the requirement to have ballots sealed was to avoid fraudulent voting and pointed out that some envelopes and ballot sheets might have been deposited after being stolen. The Commission should have established how many unsealed ballot papers there had been and then have checked their validity. Allowing the ballots meant it had been impossible to remedy such irregularities. It complained that unlawful and unfair conduct during the referendum process had impaired the legitimacy of the vote and asked the Commission to annul the result,” reminded the statement and added that “The Commission rejected the party’s complaint. Its decision was final as no appeal was possible under the Constitution.”

However, the final report by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) on Turkey’s April 16, 2017 constitutional referendum had recommended reviewing the legal framework to guarantee respect for fundamental rights and freedoms. Free and equal participation of all stakeholders, including civil society, in all aspects of the referendum process should be ensured, the report said.

The report had stated that the referendum took place on an unlevel playing field and the two sides of the campaign did not have equal opportunities. Under the existing state of emergency, fundamental freedoms essential to a genuinely democratic process were curtailed and voters were not provided with impartial information about key aspects of the reform, the report said. It further noted that while technical aspects of the referendum were generally well administered, late changes in counting procedures removed an important safeguard.

The report had also pointed out that in a state of emergency, legislation should ensure that rights and freedoms are only limited to the extent strictly necessary for the exigencies of the emergency.

To enhance the integrity of and public confidence in the referendum process, the report had recommended that authorities implement safeguards to ensure a clear separation between the state and political parties, and prevent public officials from using the advantage of their office for campaigning purposes.

The report had noted that one side’s dominance in media coverage, as well as the media restrictions, reduced voters’ access to a plurality of views. Authorities should refrain from applying anti-terrorism legislation to prosecute journalists based solely on the content of their reporting.

To provide for an effective means of redress, the report had recommended that decisions of the Supreme Board of Elections be subject to judicial review. Additional recommendations relate to amending legislation to explicitly provide for the presence of observers, both international and citizen.

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