In a very interesting case the European Court of Human Rights held 5-2 that 10-percent electoral threshold in Turkish parliamentary election does not violate the right to free elections.
Facts: Turkey uses proportional representation (PR) system and a national threshold of 10%. Multi-party electoral coalitions are forbidden.
Result: During the last national elections, only two out of eighteen parties reached the threshold. Over 45% of the voters voted for the parties that did not reach the threshold. Therefore over 45% of the votes got "wasted" and completely unrepresented. One of the political parties received over 40% of the vote in one of the predominantly Kurdish regions and clearly won elections there but failed to reach the national 10% threshold.
European Convention of Human Rights: Article 3 of Protocol No. 1 of the ECHR guarantees the right to free elections. The Court has ruled many times that this right guarantees individual right to vote.
Decision: The Court was clearly uncomfortable with the height of the threshold but found no violation of the Convention. It justified the decision on the political instability of the 1970’s Turkey. The electoral threshold of ten percent was accepted as a measure “to prevent excessive and debilitating parliamentary fragmentation and thus strengthen governmental stability.” The court stressed, however, that “rules that would be unacceptable in the context of one system may be justified in the context of another.” Taken this into account it is clear that the same threshold may well not be acceptable in states with long democratic tradition.
Dissent: Judges Cabral Barreto and Mularoni delivered a dissenting opinion. They were of the opinion that “the Turkish electoral system, which lays down a national threshold of 10% without any corrective counterbalances, raises such a problem under Article 3 of Protocol No.1 that there has been a violation of the provision”. They relied, firstly, on the fact that 45.3 percent of the voters got no representation in the Turkish parliament as their votes were cast for the parties that did not pass the threshold. Secondly, they relied on the Federacion nacionalista Canaria v. Spain decision. In this decision, the Court emphasized that it found no violation because every political party had a chance to win parliamentary seats by passing any of the two alternative thresholds – either a 30% constituency threshold or a 6% threshold in the region as a whole. Therefore in the Canaria case both types of parties - local as well as national - have a chance of getting elected. In the case of Turkey there were no such alternatives but only one, national threshold of 10 percent. The dissenting judges also took note of the Parliamentary Assembly of the Council of Europe, which declared the threshold to be manifestly excessive and invited Turkey to lower it. Finally, they repeated the majority’s conclusion that all the arguments put forward by the government in regards to the proportionality of the Turkish electoral system were either unpersuasive or incorrect.
The case is Sadak v. Turkey (application no. 10226/03), decided 31 January 2007.
The text of the whole decision e of the Court is available for download here:
http://serkancengiz.av.tr/fileadmin/articles/Secim_Baraji.doc
Here's some more comments on the decision:
http://jamesinturkey.blogspot.com/2006/08/will-electoral-threshold-ever-fall.html http://jamesinturkey.blogspot.com/2007/01/not-very-normal-threshold_31.html