The SEC’s huge contradiction: ECHR recognised for the first time

Alican Uludağ
 
Although the Supreme Election Council (SEC) relied on Article 3 of the Additional Protocol 1 to the European Convention of Human Rights as the basis for its decision deeming unstamped votes to be valid in the referendum in which ‘yes’ prevailed by a hair’s breadth, it has emerged that in the past it has rejected applications by the opposition made on these grounds. The SEC, which annulled the polling record thanks to which Hatip Dicle entered parliament as an MP in 2011, citing statute as grounds, denied the objection that Dicle made relying on the European Convention on Human Rights as a superior norm. The SEC that today relies on the European Convention on Human Rights to enable Erdoğan to become executive president did not even address the right to free elections of the European Convention on Human Rights in its Hatip Dicle ruling.
The Supreme Election Council has contradicted its previous precedent with its justification for the resolution deeming unstamped votes to be valid that affected the outcome of the constitutional amendment referendum. The SEC, stating that the right to free and democratic elections is enshrined in Article 3 of the Additional Protocol 1 to the European Convention of Human Rights, argued that, while Article 3 of the Additional Protocol 1 only regulates the right to election as concerns the election of members of parliament, it essentially attaches importance to and protects the right to free election. This means that the Council gave a broader interpretation to Article 3. The SEC, stating that everyone whose name appears on the list of voters is entitled to vote, said, ‘When Articles 67 and 90/5 of the Constitution and Article 3 of the Additional Protocol 1 to the European Convention of Human Rights are assessed in conjunction, the conclusion was reached that the votes that were cast using voting envelopes and voting slips that had not been stamped as a result of polling committees’ errors or negligence must be deemed to be valid.’
However, the judicial system in Turkey has until now, in applying existing laws, ignored the European Convention of Human Rights, accepted as being a superior norm by virtue of Article 90 of the Constitution and to which Turkey is party. Especially in the case of breaches of rights affecting opposition circles, superior courts including the SEC have refrained from implementing the ECHR and have been unwilling to deviate from domestic legislation. However, the SEC has relied on the ECHR in an unprecedented manner in a referendum which President Erdoğan has won by a hair’s breadth.
In contradistinction to this, the SEC has denied applications coming before it which relied on the ECHR. The most striking example was its Hatip Dicle ruling. The SEC on 21 June 2011 annulled the record thanks to which Hatip Dicle, who had been elected as an independent MP for Diyarbakır on 12 June 2011 and had obtained the relevant certificate of election, was elected as an MP on the grounds of ‘full illegality.’ While citing in justification for this ‘The emergence of a sentence that had attained finality which disqualified Dicle from standing for election,’ it relied on Article 11 of the Election of Members of Parliament Law number 2839 and Article 13/A of the Criminal Record Law number 5352 by way of statutory basis. Thanks to the decision, somebody from the AKP entered parliament in Dicle’s place.
Hatip Dicle submitted a petition to the SEC objecting to this decision through his lawyer, Levent Kanat. In the petition, attention having been drawn to Article 3 of the Additional Protocol 1 with the heading ‘Right to free elections’ of the European Convention of Human Rights, it was recalled that this instrument contained the provision, ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’ Reference was also made to Article 14 with the heading, ‘Prohibition of discrimination’ of the same convention.
It was stressed in the petition that, according to Article 90 of the Constitution, the provisions of international treaties will prevail in the event of conflict that may emerge should international treaties on basic rights and freedoms and statutes contain different provisions on the same matter.
It ignored the ECHR
However, the SEC denied the objection of 23 June 2011 and stripped Dicle of his status as an MP. Additionally, there was no mention in the justification for the decision of the references made by Dicle’s lawyer to the ECHR.