CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 8 juillet 2008

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font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     GRAND CHAMBER             CASE OF YUMAK AND SADAK v. TURKEY   (Application no. 10226/03)                     JUDGMENT       STRASBOURG   8 July 2008       In the case of Yumak and Sadak v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Boštjan M. Zupančič, President ,   Peer Lorenzen,   Françoise Tulkens,   Josep Casadevall,   Rıza Türmen,   Corneliu Bîrsan,   Volodymyr Butkevych,   Nina Vajić,   Anatoly Kovler,   Vladimiro Zagrebelsky,   Elisabeth Steiner,   Javier Borrego Borrego,   Khanlar Hajiyev,   Renate Jaeger,   Ján Šikuta,   Isabelle Berro-Lefèvre,   Päivi Hirvelä, judges , and Vincent Berger, Jurisconsult , Having deliberated in private on 21 November 2007 and 4 June 2008, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 10226/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mehmet Yumak and Mr   Resul Sadak (“the applicants”), on 1 March 2003. 2.     The applicants, who had been granted legal aid, were represented by Mr   T. Elçi, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicants alleged that the electoral threshold of 10% imposed nationally for parliamentary elections interfered with the free expression of the opinion of the people in the choice of the legislature. They relied on Article   3 of Protocol No. 1. 4.     The application was allocated to the Second Section of the Court (Rule   52 § 1 of the Rules of Court). On 9 May 2006 it was declared partly admissible by a Chamber of that Section composed of Jean-Paul Costa, Ireneu Cabral Barreto, Rıza Türmen, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström and Dragoljub Popović, judges, and Sally Dollé, Section Registrar. 5.     A hearing on the merits (Rule 54 § 3) was held in public in the Human Rights Building, Strasbourg, on 5 September 2006. 6.     In its judgment of 30 January 2007 (“the Chamber judgment”), the Chamber held by five votes to two that there had been no violation of Article   3 of Protocol No. 1. The joint dissenting opinion of Judges Ireneu Cabral Barreto and Antonella Mularoni was annexed to the judgment. 7.     On 21 April 2007 the applicants asked for the case to be referred to the Grand Chamber by virtue of Article 43 of the Convention. On 9 July 2007 a panel of the Grand Chamber granted the request. 8.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 9.     The applicants and the Government each filed observations on the merits. Observations were also received from Minority Rights Group International, a non-governmental organisation based in London, which the President had authorised to intervene in the written proceedings (Article 36 §   2 of the Convention and Rule 24). 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 21 November 2007 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   M. Özmen ,   Co-Agent , Mr   H. Hünler ,   Counsel , Ms   A. Özdemir , Ms   V. Sirmen , Ms   Y. Renda, Ms   Ö. Gazialem,   Advisers ; (b)     for the applicants Mr   T. Elçi ,     Representative , Mr   T. Fisher , Ms   E. Frank ,   Advisers , Mr   R. Sadak ,   Applicant .   The Court heard addresses by Mr Elçi and Mr Özmen and replies from Mr   Fisher and Mr Özmen to questions from several judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 11.     The applicants were born in 1962 and 1959 respectively and live in Şırnak. They stood for election in the parliamentary elections of 3   November 2002 as candidates of the People’s Democratic Party (DEHAP) in the province of Şırnak, but neither of them was elected. A.     The parliamentary elections of 3 November 2002 12.     Following the 1999 earthquakes, Turkey went through two serious economic crises in November 2000 and February 2001. There then followed a political crisis, due, firstly, to the state of health of the then Prime Minister and, secondly, to the numerous internal divisions within the governing coalition, a grouping of three political parties. 13.     It was in that context that on 31 July 2002 the Grand National Assembly of Turkey (“the National Assembly”) decided to bring forward the date of the next parliamentary elections to 3 November 2002. 14.     In early September three left-wing political parties, the People’s Democracy Party (HADEP), the Labour Party (EMEP) and the Democratic Socialist Party (SDP), decided to form a “Labour, Peace and Democracy Block” and to form a new political party, DEHAP. The applicants began their electoral campaign as the new party’s leading candidates in the province of Şırnak. 15.     Such pre-electoral alliances had already been formed in 1991: the Nationalist Labour Party (MÇP – the successor to and predecessor of the MHP) and the Reformist Democracy Party (IDP) had secured seats for their candidates by joining the list presented by the Welfare Party (RP); and the People’s Labour Party (HEP – the predecessor of DEHAP) had won eighteen seats in Parliament by placing candidates on the list of the People’s Social Democrat Party (SHP). In that way some parties not likely to obtain 10% of the national vote sometimes manage to obtain parliamentary representation: they join the list of a larger party and then, once elected, leave it and go their own way, either with independent MPs or under the banner of another party. 16.     The results of the elections of 3 November 2002 in the province of Şırnak gave the DEHAP list 47,449 of the 103,111 votes cast, a score of about 45.95%. However, as the party had not succeeded in passing the national threshold of 10%, the applicants were not elected. The three seats allocated to Şırnak province were shared as follows: two seats for the AKP ( Adalet ve Kalkınma – the Justice and Development Party, a party of the conservative right), which had polled 14.05% (14,460 votes), and one seat for Mr Tatar, an independent candidate who had polled 9.69% (9,914   votes). 17.     Of the eighteen parties which had taken part in the elections, only the AKP and the CHP ( Cumhuriyet Halk Partisi – the People’s Republican Party, a left-wing party) succeeded in passing the 10% threshold. With 34.26% of the votes cast, the AKP won 363 seats, 66% of those in the National Assembly. The CHP, which polled 19.4%, obtained 178 seats, or 33% of the total. Nine independent candidates were also elected. 18.     However, not only DEHAP, which polled 6.22%, but many other political parties were unable to obtain seats in Parliament. These included the True Path Party (DYP, centre-right), the National Action Party (MHP, nationalist), the Young Party (GP, centrist) and the Motherland Party (ANAP, centre-right), which polled 9.54%, 8.36%, 7.25% and 5.13% of the votes cast respectively. 19.     The results of these elections were generally interpreted as a huge political upheaval. Not only did the proportion of the electorate not represented in Parliament reach a record level in Turkey (approximately 45%) but in addition the abstention rate (22% of registered voters) exceeded 20% for the first time since 1980. As a result, the National Assembly which emerged from the elections was the least representative since 1946, the year in which a multiparty system was first introduced. Moreover, for the first time since 1954, only two parties were represented in Parliament. 20.     To explain the National Assembly’s unrepresentativeness, some commentators have referred to the cumulative effect of a number of factors over and above the existence of a high national threshold. For example, because of the protest-vote phenomenon linked to the economic and political crisis, the five parties which had obtained seats in the 1999 parliamentary elections – including the three which had formed the governing coalition between 1999 and 2002 – were unable to reach the 10% threshold in 2002 and were accordingly deprived of representation in Parliament. Similarly, electoral fragmentation had an effect on the results in that numerous attempts to form pre-electoral coalitions had come to nothing. 21.     After these elections the AKP, which had an absolute majority in Parliament, formed a government. B.     The parliamentary elections of 22 July 2007 (subsequent to the Chamber judgment) 22.     In early May 2007 the Turkish Parliament decided to hold early parliamentary elections, choosing 22 July 2007 as the date. The decision followed a political crisis resulting from Parliament’s inability to elect a new President of the Republic to follow on from Ahmet Necdet Sezer before the expiry of his single seven-year term of office, on 16 May 2007. In the normal course of events, these elections should have been held on 4   November 2007. 23.     Fourteen political parties took part in the elections, which were marked by two characteristics. Firstly, a strong mobilisation of the electorate was observed following the presidential crisis, since the participation rate rose to 84%. Secondly, political parties used two pre-electoral strategies to circumvent the national 10% threshold. The Party of the Democratic Left (DSP) took part in the poll under the banner of the CHP, a rival party, and by that means managed to win thirteen seats. The Party for a Democratic Society (DTP, pro-Kurdish, left-leaning) presented its candidates as independents using the slogan “A thousand hopes”; it also supported certain left-wing Turkish candidates. This movement was backed by other small left-wing groups such as the EMEP, the SDP and the ÖDP (the Liberty and Solidarity Party, socialist). More than sixty independent candidates stood for election in about forty provincial constituencies. 24.     In the elections the AKP, the CHP and the MHP managed to get over the 10% threshold. With 46.58% of the votes cast, the AKP won 341 seats, 62% of the total. The CHP, with 20.88% of the votes, won 112 seats, 20.36% of the total; however, the thirteen MPs mentioned in paragraph 23 above subsequently resigned from the CHP and went back to the DSP, their original party. The MHP, which polled 14.27% of the votes, won seventy ‑ one seats, or 12.9% of the total. 25.     The strong showing by independent candidates was one of the main features of the elections of 22 July 2007. There were none in the National Assembly in 1980 but 1999 saw them return, when there were three. In 2002 nine independent MPs were elected from a national total of 260   independent candidates. In the elections of 22 July 2007, twenty-seven independent MPs were elected. In particular, more than twenty “thousand hopes” candidates were elected, after obtaining approximately 2.23% of the votes cast, and joined the DTP after the elections. The DTP, which had twenty MPs, the minimum number to be able to form a parliamentary group, was thus able to do so. The independents also included a socialist MP (the former president of the ÖDP), a nationalist MP (the former president of the Great Union Party – BBP, nationalist) and a centrist MP (the former president of ANAP). 26.     A government was formed by the AKP, which again secured an absolute majority in Parliament. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     The constitutional and legislative context 1.     The Constitution 27.     Article 67 of the Constitution, as amended on 23 July 1995, provides: “Citizens shall have the right to vote, to stand for election, to engage in political activities independently or as members of a political party and to take part in referenda in accordance with the rules laid down by law. Elections and referenda shall be conducted under the administration and supervision of the judiciary and in accordance with the principles of free, equal, secret and universal suffrage, in a single round of voting, the votes cast being counted and recorded in public. Nevertheless, the law shall make suitable provision for Turkish citizens resident abroad to be able to exercise their right to vote. Every Turkish citizen of at least eighteen years of age shall have the right to vote and to take part in referenda. Exercise of these rights shall be regulated by law. Serving members of the armed forces, officer cadets and persons serving prison sentences, other than those convicted of an unintentional offence, shall be deprived of the right to vote. The National Electoral Commission shall determine the measures to be taken to guarantee the security of the operations to count and record the votes in prisons and remand centres, and those operations shall be conducted in the presence of the competent judge, who shall take charge of and supervise them. Electoral laws must reconcile fair representation with governmental stability. Amendments to electoral laws shall not be applicable to elections taking place during the year following their entry into force.” 28.     Article 80 of the Constitution provides: “Members of the Grand National Assembly of Turkey shall represent the whole nation and not the regions or persons which have elected them.” 29.     Under the terms of Article 95 of the Constitution and section 22 of Law no. 2820 on political parties, a political party which has at least twenty MPs may form a parliamentary group. 2.     The electoral system 30.     Law no. 2839 on the election of members of the National Assembly, published in the Official Gazette on 13 June 1983, lays down the rules of the system for parliamentary elections. 31.     Turkey’s Grand National Assembly is a single-chamber parliament which currently has 550 members elected to serve for five years. The elections are held in the constituencies formed by the eighty-one provinces in a single round of voting. They take place throughout the national territory, on the same day; suffrage is free, equal, universal and secret. Counting the votes and recording the results is done in public. Each province is represented in Parliament by at least one MP. The other seats are allocated in proportion with the local population. Provinces which have between one and eighteen MPs form a single constituency; those with between nineteen and thirty-five MPs are divided into two constituencies; while Istanbul, which has more than thirty-five seats, is divided into three constituencies. 32.     Section 16 of Law no. 2839 provides: “... [P]olitical parties may not present joint lists ...” 33.     Section 33 of Law no. 2839 (as amended on 23 May 1987) provides: “In a general election parties may not win seats unless they obtain, nationally, more than 10% of the votes validly cast ... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the 10% national threshold ...” 34.     In allocating seats the D’Hondt system of proportional representation is used. That method – under which the votes cast for each list are first divided by a series of whole numbers (1, 2, 3, 4, 5, etc.) and seats then allocated to the lists which have the highest quotients – tends to favour the majority party. 35.     Sections 21(2) and 41(1) of Law no. 2839 read as follows: Section 21(2) “Persons wishing to stand as independent candidates shall deposit with the competent Treasury authorities, as a guarantee, a sum equal to the gross monthly salary of a civil servant of the highest rank, and shall place a receipt for payment of that sum in the file presenting their candidature in the parliamentary election.” Section 41(1) “... if, in a parliamentary election, an independent candidate has not obtained sufficient votes to win a seat, the sum deposited as a guarantee shall be forfeited to the Treasury.” 36.     Section 36 of Law no. 2820 on political parties (published in the Official Gazette of 24 April 1983) provides: “In order to be able to take part in an election, a political party must have a seat in at least half the provinces and have held its general meeting at least six months before polling day, or must have a group within the Grand National Assembly.” 37.     Section 81 of Law no. 2820 provides: “Political parties are not entitled to assert that there exist within the territory of the Republic of Turkey minorities based on a race, religion, sect, culture or language.” 38.     Under the relevant legislation the name of independent candidates is not printed on the voting slips provided near the Turkish borders. That means that Turkish electors resident abroad may vote for only a political party when using the ballot boxes placed at border crossing-points or large airports. Similarly, whereas political parties have time allocated on television and radio for electioneering broadcasts, independent candidates do not. 3.     Constitutional case-law 39.     The Constitutional Court’s case-law on the compatibility of electoral thresholds with the principle of a democratic State has been contradictory. 40.     At first, in a judgment delivered on 6 May 1968 (E. 1968/15, K.   1968/13), the Constitutional Court held to be contrary to the principle of a democratic State the “ordinary threshold” introduced by Parliament in order to correct the effects of the proportional representation system. This is a threshold which varies in accordance with the number of seats to be filled in each parliamentary constituency. The threshold applied in a constituency is calculated by dividing the number of votes cast by the number of seats to be filled, and seats are awarded only to candidates who pass it. The Constitutional Court held in particular that such a threshold, which could enable the representatives of a minority of electors to form a government, was likely to hinder the representation of all currents of thought. 41.     Later, after the adoption of the 1982 Constitution, the Constitutional Court gave its views on the question of electoral systems in a judgment delivered on 1 March 1984 (E. 1984/1, 1984/2), ruling as follows: “The first paragraph of Article 67 of the Constitution provides that citizens are entitled to vote and stand for election in accordance with rules laid down by law. However, it does not grant an unlimited margin of appreciation to the legislature. By virtue of Article 67, elections are conducted under the administration and scrutiny of the judicial power and according to the principles of free, equal, secret and universal suffrage in a single ballot, the votes being counted and recorded in public. Provided those rules are complied with, the legislature may therefore adopt whatever electoral system it deems most appropriate. If the constituent assembly had had a particular system in mind, it would have adopted a binding rule. As it did not do so, the legislature is free to adopt the system it considers best adapted to the country’s political and social conditions ... Provided that it does not enact measures tending to restrict the free expression of the people, or subject political life to the hegemony of a single party, or destroy the multiparty system, Parliament can put in place one of the existing electoral systems.” 42.     In a judgment of 18 November 1995 (E. 1995/54, K. 1995/59), the Constitutional Court had the opportunity to rule on the constitutionality of section   34/A of Law no. 2839. That section, which referred to section 33 of the same Law, also imposed the electoral threshold of 10% for the allocation of the seats for Assembly members elected in the “national constituency”. The Constitutional Court declared the provisions establishing the national constituency null and void, but held that the 10% national threshold could be regarded as compatible with Article 67 of the Constitution. The relevant passages of the judgment read as follows: “... [T]he Constitution defines the Turkish State as a Republic ... The constitutional structure of the State, which is based on national sovereignty, is a product of the nation’s will, mediated through free elections. That choice, emphasised in the various Articles of the Constitution, is set forth clearly and precisely in Article 67, entitled ‘The right to vote, to be elected and to engage in political activities’. Paragraph 6 of Article   67, as amended, provides that electoral laws must be framed in such a way as to strike a balance between the principles of ‘fair representation’ and ‘governmental stability’. The aim is to ensure that the electors’ will is reflected as far as possible [in] the legislature. ... [In order to] choose the system the methods of which are most conducive to the expression of the collective will and the taking of collective decisions in the legislature, ... enacting the appropriate legislation in the light of the country’s specific circumstances and the requirements of the Constitution, it is necessary to opt for [the system] which is most compatible with the Constitution or to reject any system incompatible with it. The impact of a representative democracy is visible in various fields. The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments. ... Where representation is concerned, the importance attached to fairness is the main condition for governmental stability. Fairness ensures stability. However, the idea of stability, in the absence of fairness, creates instability. The principle of ‘fair representation’ with which the Constitution requires [compliance] consists in free, equal, secret and universal [suffrage], with one round of voting and public access to the counting of votes and the recording of results, and produces a number of representatives proportional to the number of votes obtained. The principle of ‘governmental stability’ is perceived as a reference to methods designed to reflect votes [within] the legislature so as to guarantee the strength of the executive power. The ‘governmental stability’ which it is sought to ensure through the threshold (described as a ‘hurdle’), just like ‘fair representation’ ..., is protected by the Constitution. In elections ... importance must be attached to combining these two principles, which seem antinomic in certain situations, in such a way [as to ensure] that they counterbalance and complement each other ... In order to achieve the goal of ‘governmental stability’, set forth in the Constitution, a national [threshold] has been introduced ... Clearly, the [threshold] of 10% of the votes cast nationally laid down in section 33 of Law no. 2839 ... came into force with the approval of the legislature. Electoral systems must be compatible with constitutional principles ..., and it is inevitable that some of these systems should contain strict rules. Thresholds which result from the nature of the systems and [are expressed] in percentages, and [which] at national level restrict the right to vote and to be elected, are applicable [and] acceptable ... provided that they do not exceed normal limits ... The [threshold] of 10% is compatible with the principles of governmental stability and fair representation ...” Three judges of the Constitutional Court out of eleven disagreed with the arguments of the majority, considering that the 10% national threshold was incompatible with Article 67 of the Constitution. 43.     In the same judgment, however, the Constitutional Court declared null and void an electoral threshold of 25% for the allocation of seats within provinces (provincial threshold). Holding that such a threshold was inconsistent with the principle of fair representation, it observed: “Although a national threshold is imposed in parliamentary elections in accordance with the principle of ‘governmental stability’, imposing in addition a threshold for each electoral constituency is incompatible with the principle of ‘fair representation’.” 4.     Brief account of past parliamentary elections 44.     The elections of 1950, 1954 and 1957 – in which the majority representation system was used – were unable to ensure an institutional balance between the majority in Parliament and the opposition. This imbalance was one of the main reasons for the 1960 coup d’état . Following the intervention of the armed forces, Parliament adopted proportional representation, using the D’Hondt method, to strengthen pluralism and the political system. As a result, the elections in 1965 and 1969 produced stable majorities in the National Assembly while enabling small parties to be represented. However, in the elections of 1973 and 1977 the main political movements were unable to establish stable governments, although they had wide electoral support. That period of government instability was marked by the formation of one coalition after another, each made fragile by the disproportionate influence of the small parties on government policy. 45.     Following the military regime between 1980 and 1983, Law no.   2839 on the election of members of the National Assembly, enacted on 13   June 1983, re-established proportional representation, with two electoral thresholds. To the 10% national threshold was added a provincial threshold (the number of electors divided by the number of seats to be filled in each constituency); in 1995 the Constitutional Court declared the provincial threshold null and void. In the 1983 parliamentary elections the Motherland Party (ANAP) obtained an absolute majority in Parliament. 46.     The parliamentary elections of 29 November 1987 likewise enabled the ANAP, with 36.31% of the vote, to form a stable parliamentary majority. Two other parties also won seats. In the elections of 20 October 1991, five parties gained seats in Parliament. This result was due in particular to the fact that three small political parties (MÇP, IDP and HEP) had taken part in the elections under the banner of other political parties with the aim of circumventing section 16 of Law no. 2839, which makes it illegal to form joint lists before elections. The government was based on a coalition of two parties. In those elections the eighteen candidates of the HEP (People’s Labour Party, pro-Kurdish) were elected to Parliament on the list of the (social-democratic) SHP; they later resigned from the SHP to join the ranks of their own party, the HEP. 47.     In the general election of 24 December 1995, five parties gained seats in Parliament. However, as none of them had a parliamentary majority, a coalition was formed. 48.     The 1999 parliamentary elections again resulted in no party having a parliamentary majority. Five political parties won seats in the National Assembly. A coalition of three parties formed a government. 49.     Before the election on 3 November 2002, the year which had seen the highest proportion of votes going to parties not ultimately represented in Parliament was 1987, with 19.4% of the votes cast. In 1991, owing to the participation of two pre-electoral coalitions, one between the RP, the MÇP and the IDP and the other between the SHP and the HEP, that proportion was brought down to 0.5%. After the elections on 22 July 2007 it was 13.1%. 50.     As indicated above (see paragraphs 12-21), the elections of 3   November 2002 enabled the AKP to form a stable government which lasted until 22 July 2007, notwithstanding the fact that 45.3% of the votes – approximately 14,500,000 votes – were not reflected in the composition of Parliament. B.     Relevant Council of Europe documents 51.     The Council of Europe has not laid down binding rules on the question of electoral thresholds. 1.     Documents of the Parliamentary Assembly of the Council of Europe 52.     The relevant part of Resolution 1547 (2007) on the state of human rights and democracy in Europe, adopted by the Assembly on 18 April 2007, reads as follows: “58.     In well-established democracies, there should be no thresholds higher than 3% during the parliamentary elections. It should thus be possible to express a maximum number of opinions. Excluding numerous groups of people from the right to be represented is detrimental to a democratic system. In well-established democracies, a balance has to be found between fair representation of views in the community and effectiveness in Parliament and government.” 53.     In its Recommendation 1791 (2007) on the state of human rights and democracy in Europe, adopted on 18 April 2007, the Assembly recommended that the Committee of Ministers take measures to remedy the deficiencies noted in the above-mentioned Resolution. With regard to electoral thresholds, it recommended that the Committee of Ministers urge member States to: “17.10     consider decreasing thresholds over 3% for parliamentary elections and ... consider the balance between fair representation and effectiveness in Parliament and government.” 2.     Documents of the European Commission for Democracy through Law (the Venice Commission) 54.     The Code of good practice in electoral matters, adopted by the Venice Commission in 2002, emphatically states: “The five principles underlying Europe’s electoral heritage are universal, equal, free, secret and direct suffrage.” “Within the respect of” those principles, “any electoral system may be chosen”. 55.     The relevant part of the Venice Commission’s Report on electoral law and electoral administration in Europe, of 12 June 2006, reads as follows: “[T]he effects of one particular electoral system can be different from country to country, [and] we must appreciate that electoral systems can pursue different, sometimes even antagonistic, political aims. One electoral system might concentrate more on a fair representation of the parties in Parliament, while another one might aim to avoid a fragmentation of the party system and encourage the formation of a governing majority of one party in Parliament. One electoral system encourages a close relationship between voters and ‘their’ constituency representatives, while another makes it easy for the parties to specifically introduce women, minorities or specialists into Parliament by way of closed party lists. In some countries, complicated electoral systems are accepted in order to combine several political aims. In other countries, it is seen as a priority that the electoral system be not too difficult for the electorate and the administration to understand and operate. The appropriateness of an electoral system is determined according to whether it will do justice, bearing in mind the local conditions and problems. In particular, transparency of the elaboration of the list should be ensured. Thus, the electoral system and proposals to reform should be assessed in each individual case.” 56.     In its Report on electoral rules and affirmative action for national minorities’ participation in decision-making process in European countries, of 15 March 2005, the Venice Commission, having analysed the practices of certain member States, recommended five specific measures to promote the representation of minorities. Two of the measures concerned have a bearing on the question of electoral thresholds: “... d.     Electoral thresholds should not affect the chances of national minorities to be represented. e.     Electoral districts (their number, the size and form, the magnitude) may be designed with the purpose to enhance the minorities’ participation in the decision-making processes.” 3.     Documents specifically relating to elections in Turkey (a)     Report of the ad hoc Committee of the Parliamentary Assembly of the Council of Europe 57.     The Government referred to the report of the ad hoc Committee for the Observation of Parliamentary Elections in Turkey (3 November 2002), produced on 20 December 2002. The relevant parts of the report read as follows: “As widely reported by the media, two parties only out of eighteen found their way into the new TBMM [the Grand National Assembly of Turkey]: the AKP (Justice and Development [Party]) and CHP (Republican People’s Party), leaving out all other parties, which had been represented so far in the Parliament because they could not meet the 10% threshold. The party in government until the elections received only 1% of the votes. Economic and corruption problems were determining in the elections. A clear and absolute majority has emerged with 362 seats for the AKP, 179 seats for the opposition and 9 seats for independent members. (These independent members are elected in small towns where they have a good reputation.) It should be recalled that AKP had 59 seats in the previous Parliament, and the CHP 3 (1999 elections). This situation might create probably greater stability in the country by avoiding complicated and unstable coalitions. On Monday 4 November 2002 the Turkish Stock Exchange went up by 6.1%. However, it also means that approximately 44% of the voters have no representation in the Parliament. The results must thus be considered as a clear protest vote against the Establishment as a whole, since none of the three parties in the old governing coalition got enough votes for a single seat!” (b)     The Parliamentary Assembly’s Resolution 1380 (2004) 58.     Paragraphs 6 and 23 of Resolution 1380 (2004) on the honouring of obligations and commitments by Turkey, adopted by the Parliamentary Assembly of the Council of Europe on 22 June 2004, are worded as follows: “6.     With regard to pluralist democracy, the Assembly recognises that Turkey is a functioning democracy with a multiparty system, free elections and separation of powers. The frequency with which political parties are dissolved is nevertheless a real source of concern and the Assembly hopes that in future the constitutional changes of October 2001 and those introduced by the March 2002 legislation on political parties will limit the use of such an extreme measure as dissolution. The Assembly also considers that requiring parties to win at least 10% of the votes cast nationally before they can be represented in Parliament is excessive and that the voting arrangements for Turkish citizens living abroad should be changed. ... 23.     The Assembly therefore invites Turkey, as part of its authorities’ current reform process, to: ... ii.     amend the electoral code to lower the 10% threshold and enable Turkish citizens living abroad to vote without having to present themselves at the frontier; ...” (c)     Report on observation of the parliamentary elections in Turkey (22 July 2007) 59.     The relevant parts of the Report on observation of the parliamentary elections in Turkey, produced by an ad hoc Committee of the Parliamentary Assembly of the Council of Europe, read as follows: “XII.     Conclusions and recommendations 55.     The parliamentary elections in Turkey, on 22 July 2007, were generally in compliance with Turkey’s Council of Europe commitments and European standards for free elections. 56.     Overwhelmingly, the voting was well organised and conducted in an orderly and professional fashion, which testifies to a long-standing tradition of democratic elections in Turkey. 57.     The high voter turnout shows that confidence in the democratic process exists in Turkey. 58.     Electoral administrators at all levels dispatched their duties effectively and in good faith. 59.     However, the Rapporteur believes that Turkey could do more in terms of organising even better elections that would guarantee a genuinely representative parliament. The 10% threshold requirement could be lowered, in accordance with Assembly Resolutions 1380 (2004) and 1547 (2007). The fact that the new Parliament elected on 22 July 2007 is far more representative than the outgoing Parliament, representing about 90% of the opinions of the electorate, is due to the fact that three instead of two parties are represented and to the ploy of opposition parties to launch party-sponsored independent candidates and not to any steps taken by the Turkish authorities themselves. 60.     The Turkish authorities may wish to consider seizing the Venice Commission on this issue, as well as on simplifying electoral legislation.” 60.     Moreover, in reply to a question from a parliamentarian following his address to the Parliamentary Assembly on 3 October 2007, the President of the Republic of Turkey said that the 10% threshold met a real need, but might in due course be dispensed with (see the verbatim record of the sitting on 3 October 2007). The relevant parts of his reply read as follows (Registry translation of summary in French in the verbatim record of the sitting on 3   October 2007): “Mr Gül explained that the 10% threshold had been introduced to remedy the instability of previous years, in which there had been a large number of coalition governments in close succession. The threshold did not prevent independent candidates from standing. In the latest parliamentary elections, in July 2007, voter turnout had been 85%, which showed how representative Parliament was. Now that political stability had been restored the 10% threshold could be reconsidered.” C.     Comparative law 61.     Although there is no uniform classification of types of ballot and electoral systems, it is usual to distinguish three main types: majority vote systems, proportional systems and mixed systems. In majority vote systems, the winner is the candidate or list of candidates obtaining the majority of the votes in the decisive round of voting. This type of ballot makes it possible to vote in governments with clear parliamentary majorities, but at the same time it militates against the representation of minority political parties. Thus, for example, in the United Kingdom the use over many decades of a single round of voting in a single-member majority vote system (“first past the post”), combined with the existence of two dominant political parties, has had the effect of giving few seats to other parties in relation to the number of votes that they obtain. There are other similar cases, in France for instance, where there is a majority vote system spread over two rounds of voting. At the opposite extreme, the aim of the proportional representation system is to ensure that the votes cast are reflected in a proportional number of seats. Proportional representation is generally considered to be the fairest system because it tends to reflect more closely the various political forces. However, the disadvantage of proportional representation is that it tends to lead to fragmentation among those seeking electoral support and thus makes it more difficult to establish stable parliamentary majorities. 62.     Currently, proportional systems are the most widely used in Europe. By way of example, Bulgaria, the Czech Republic, Denmark, Estonia, Ireland, Luxembourg, Malta, Moldova, Norway, Poland, Portugal, Romania, Russia, Spain, Sweden and Turkey have opted for one or other variant of proportional representation. There are also mixed systems containing various combinations of the two types of ballot (in Germany, Italy and Lithuania, for example). 63.     In some proportional systems statutory thresholds are used to correct the negative effects of proportional voting, and in particular to ensure greater parliamentary stability. These thresholds, generally expressed as a percentage of the votes cast, are “limits, fixed or variable, defined in terms of the electoral result, which determine the share of a list or candidate in the distribution of seats”. However, the role played by thresholds varies in accordance with the level at which they are set and the party system in each country. A low threshold excludes only very small groupings, which makes it more difficult to form stable majorities, whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation. 64.     Analysis of the electoral thresholds adopted in the member States which have proportional representation shows tha