BBP ve SP Başvurusu

BBP ve SP Başvurusu

BBP and SP, Application No: 2014/8843, 10 December 2015

A) Facts

In the 2011 parliamentary elections, the applicants Büyük Birlik Partisi (BBP – Great Union Party) took 0,75%, and Saadet Partisi (SP – Felicity Party) took 1,26% of the votes. The applicants could not have deputies in the parliament since the percentage of their vote was below the national threshold (10%) regulated by Article 33 of the Election Law. Besides, pursuant to Additional Article 1(5) of the Law on Political Parties, they could not be granted any financial support from the state as a result of not reaching the threshold of 7%. In 2014, this threshold was reduced to 3%, but the applicants filed an application to Constitutional Court considering that they would not be able to get financial support if they are going to get the same results in 2015 elections. In the parliamentary elections of 7 June 2015, which was occurred before the Constitutional Court reviewed the present application, the BBP allied with the SP and they took a vote of 2,06%, while on the elections of 1 November 2015, BBP took 0,53% and SP took 0,68% of the votes.

B) Judgment and Reasoning of the Court

The applicants filed an application on the grounds of the possibility that they would not be able to get financial support after the 2015 elections, considering the results of the 2011 elections. And in two subsequent parliamentary elections in 2015, they could not reach the required 3% of the votes to get support. According to the Court, although at the time of application the applicants were not victims, at the time of merits review they could be deemed as victims. Furthermore, the claims of the applicants were now not directed at the law itself, but at the application of the law.

The Constitutional Court first of all pointed out the link between Article 68 of the Constitution which states that “sufficient and fair financial support to political parties shall be provided by the state” and Article 67 which regulates the right to elect, to run for election and to participate in politics. The Court also stated that Article 3 of Protocol No. 1 to the ECHR and Article 67 of the Constitution provide protection for the same freedom. Then it determined that the 3% threshold brought with the Law on Political Parties constituted a restriction of the right to run for election and participate in politics. The Court went on with the evaluation of whether this restriction infringed upon the essence of the right and whether the proportionality principle was violated. After referring to the Recommendation of the Parliamentary Assembly of the Council of Europe (PACE) on financing of political parties and to Venice Commission Guidelines on the Financing of Political Parties, the Court followed the principles derived from these documents. The former document provides the principle that “political parties need significant amount of financial resources to get known publicly and to get support for their political ideas”; while the latter stipulates that “the parties to which public financial support can be provided shall include also the parties being represented in the parliament, parties representing a significant proportion of the voters and parties presenting candidates for elections and the amount of public financial support should be determined by legislator periodically and based on objective criteria”. Then the Court elaborated on the following principles derived from the

ECtHR case-law that the state should act in accordance with the principle of equal treatment while regulating the citizens’ use of the right to vote and to run for election and that the financial support of the state should aim at reinforcing political pluralism. The Court also emphasized that it is “necessary” to determine a threshold for the financial support of the state, and stated that the threshold determined by the Additional Article 1 of the Law on Political Parties did not impede the effective use of the right to run for election. According to the Court, determination of a proportional threshold was necessary to ensure the effective use of the right to run for election. In light of these principles, the Court decided that the %3 threshold for financial support is a proportional restriction of the right to run for election and that the applicants’ lack of financial state support did not impede their right to run for election.

C) Significance of the Judgement

The Constitutional Court examined the merits of the case by stating that the applicants were being victims at the time of the examination, although they were only potential victims at the time of application. The decision carries importance by proving the possibility to file an individual application on the direct application of a legislative act.