PROCEDURE

The case originated in an application (no. 28881/07) 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 a Turkish national, Mr Baskin Oran (“the applicant”), on 7 July 2007.

The applicant was represented by Mr M.S. Gemalmaz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

The applicant alleged a violation des Articles 10 and 14 of the Convention respectively, in conjunction with Article 3 of Protocol No. 1, and a violation of Article 13 of the Convention.

On 14 March 2011 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1945 and lives in Ankara.

The applicant, who was a professor of political science at the University of Ankara, had stood for the parliamentary elections of 22 July 2007, in the second electoral district of Istanbul, as an independent candidate. He had not been a member of any political party at the material time.

A. The legislative background to the present applications

With a view to a deeper understanding of the background to the present applications, the Court considers it useful to outline the circumstances under which the parliamentary elections of 22 July 2007 took place. Accordingly it will refer to the relevant passages of Yumak and Sadak v. Turkey ([GC], no. 10226/03, §§ 22-26, ECHR 2008), which read as follows: “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.

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.

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.

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).

A government was formed by the AKP, which again secured an absolute majority in Parliament.”

B. Application no. 28881/07

In accordance with Article 94 II a) of Law no. 298 as amended under section 24 of Law no. 3270 of 28 March 1986, electors were able to vote in polling stations set up at customs posts for political parties but not for independent candidates, who included the applicant.

In a Decree of 27 May 2007 the Higher Electoral Council (Yüksek Seçim Kurulu) stated that it had chosen 25 June 2007 and 22 July 2007 respectively as the dates for the beginning and end of the parliamentary elections in the polling stations set up at customs posts for nationals who had been resident abroad for over six months. In the Decree the Higher Electoral Council explained that the nationals in question could only vote in those polling stations for political parties.

On 3 July 2007, with reference to Articles 67 and 90 § 6 of the Constitution and Article 3 of Protocol No. 1 to the Convention, the applicant lodged with the Higher Electoral Council a request for the annulment of the Decree du 27 May 2007.

On 4 July 2007 the Higher Electoral Council dismissed the applicant’s request, on the basis of Article 94 II a) of Law no. 298. It pointed out that this provision could only be modified by a fresh legislative amendment.

C. Application no. 37920/07

Section 52 (1) of Law no. 298 on Elections allowed political parties participating in elections to transmit election broadcasts on national radio and television (TRT), subject to certain restrictions, particularly in terms of airtime.

The Higher Electoral Council oversaw the implementation of the Law, which laid down sanctions for infringements of the provisions on election broadcasts.

Election broadcasts were authorised from 15 to 21 July 2007, that is to say during the week before the elections.

According to the applicant, the Law did not allow independent candidates like himself who did not, as a matter of principle, belong to any political party, to electioneer on the national radio and television, or, for that matter, on the private channels.

The applicant stressed that one peculiarity of the 22 July 2007 elections had been the large number of independent candidates standing. He considered that this unprecedented phenomenon had stemmed, firstly, from the 10% electoral threshold imposed during the parliamentary elections, and secondly, from the dissatisfaction felt by most people at the material time with the performance of the political parties, whether in power or in opposition. ...