BBP ve Diğerleri Başvurusu

BBP ve Diğerleri Başvurusu

Büyük Birlik Partisi and Others, Application No: 2014/8842, 12 June 2014

A) Facts

In the parliamentary elections of 12 June 2011, applicant Büyük Birlik Partisi (BBP – Great Union Party) took 0,75%, applicant Saadet Partisi (SP – Felicity Party) took 1,27% and Demokratik Sol Parti (DSP – Democratic Left Party) took 0,25% of the votes. No deputy from applicant parties could enter into the parliament. Applicant DSP applied to YSK (Supreme Electoral Council) demanding the abolishment of the national threshold with no avail. The applicants then applied to the Constitutional Court asserting that they are “potential victims” of national threshold which would be applied again in 2015 parliamentary elections.

B) Judgment and Reasoning of the Court

The Constitutional Court underlined that the applicants claimed that the regulation contained in the first paragraph of Article 33 of the Election Law is unconstitutional and thus it should be annulled. The Court pointed out that the subject matter of an individual application cannot consist of legislative acts, but the transaction, action or neglect within the application of these acts; in other words, no individual application directed at a legislative act can be brought. Therefore, the majority of the General Assembly of the Constitutional Court found that the court did not have jurisdiction over this application.

However, in one of the dissenting opinions, the prohibition of individual application directed at legislative acts was interpreted differently. According to this opinion, the aim of the said prohibition is to prevent actio popularis, and except for actio popularis, individual applications against legislative acts should be fallen within the scope of jurisdiction of the Court. Individual applications based on a violation of a right in the past and a probable violation in the future as a result of an application of a certain legislative act should be admissible, while direct abstract judicial review of legislative acts shall not.

C) Significance of the Judgement

This is a leading judgment on the prohibition of individual application directly about legislative acts, and is often referred to in the case-law. However, the dissenting opinion is also worthy of legal discussion and it should also be noted that the Court found a number of individual applications directly regarding legislative acts as admissible, although with a different legal interpretation.