16 April impropriety before the ECHR in June: There were violations that will amend case law

Erdem Gül
 
The CHP is moving ahead with its efforts to apply to the European Court of Human Rights (ECHR) for annulment of the 16 April referendum against a background of debate internally and among ‘no’ supporters. By the CHP’s schedule, the application will be with the ECHR at the start of June.
Controversy emerging after 16 April in the CHP and groups that waged the ‘no’ campaign has overshadowed objections to the referendum, particularly the deeming of unstamped votes valid. With a result eluding the CHP at the Council of State, to which it made initial recourse, and, in view of the Constitutional Court’s opinion in which it declared itself to lack jurisdiction, the opinion has formed that it is impossible to obtain a result from the judicial authorities in Turkey, and the decision was taken to bypass Constitutional Court proceedings and apply directly to the ECHR.
There have also been those who say in reaction to this decision of the CHP that a result cannot be obtained through judicial means and other methods of a political nature must be sought. Questions have also frequently been raised as to whether there will be a trustworthy election in 2019 considering above all the inequality experienced between ‘no’ and ‘yes’ supporters and the acceptance by the Supreme Election Council of unstamped votes in spite of the law. This issue is also accepted as being valid at the CHP. The CHP has opted initially to seek the ECHR’s review with particular regard to the uncertainty surrounding the Supreme Election Council. Should it be unable to obtain a result from the ECHR, the CHP is also speaking about embarking on a search for new methods to address voters’ complaints about having voted but nobody being able to protect their votes.
Preparations for the ECHR application are being conducted on behalf of the CHP by Deputy General Chair and Party Spokesperson, Bülent Tezcan. The absence of any welcome previous ECHR case law regarding elections has been the most serious problem in the preparations at the CHP. Within this context, the first step taken was to form an opinion as to the article of the European Convention on Human Rights whose violation should serve as the grounds for the application. The conclusion reached following the assessment was for application to be made to the ECHR relying on Article 3 of the First Additional Protocol of the Convention.
Drafting of the text continues
The Article contains 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.’ The rulership’s favouritism for the ‘yes’ side in the referendum campaign along with the full range of the practices in breach of the law ensuing from the unstamped votes resolution on 16 April will be included in the CHP’s application. The OSCE’s preliminary report that the poll was unfair will also constitute an important reference point for the CHP. The text of the application regarding the violation of the CHP’s right to free election continues to be drafted.
Expert support
The CHP has also obtained expert assistance from within international legal circles for its application to the ECHR. Numbering among the figures the CHP has consulted regarding its ECHR application are former CHP MP Rıza Türmen, who in the past has served as a judge on the ECHR, and Münci Özmen, Attorney-at-Law, member of the of the Turkish Union of Bar Associations Scientific Advisory Committee, who has worked in the past as a jurist in the Foreign Ministry.
Bülent Tezcan, who is conducting the application preparations, has said they plan to complete the drafting of the text by 25 May and they will make the application to the ECHR by the beginning of June at the latest. Tezcan commented as follows on their expectations from the application:
‘We are aware that the ECHR’s previous case law on elections is not in our favour. But, what was experienced in the 16 April referendum did not resemble what has happened in elections that have previously been conducted. There were experiences during the campaign in front of everyone’s eyes that amount to the violation of the right to free election. But, over and above this, there was blatant and total unlawfulness. The unstamped votes affair. So, events were experienced in the 16 April referendum of a nature that will amend the ECHR’s case law. We believe that our application will be found admissible and will be examined on its merits through an amendment of case law.’