REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

BÜYÜK BİRLİK PARTİSİ (GRAND UNITY PARTY) AND

SAADET PARTİSİ (FELICITY PARTY)

(Application no. 2014/8843)

PLENARY

JUDGMENT

I. SUBJECT-MATTER OF THE APPLICATION

          1. The application concerns the alleged violation of the right of election on account of the condition of receiving 3% votes at the general parliamentary elections which is sought for the political parties’ entitlement to be granted state aid.

          II. APPLICATION PROCESS

          2. An application was directly lodged with the Constitutional Court by the Büyük Birlik Partisi (Grand Unity Party – hereinafter referred to as “BBP”) and the Saadet Partisi (Felicity Party - hereinafter referred to as “SP”) on 12 June 2014 and 24 June 2014, respectively. Following the preliminary examination of the petition and annexes thereto in administrative terms, no deficiency which would preclude the referral of the application to the Commission was found.

          3. It was decided –by the First Commission of the Second Section, on 30 June 2014, as regards the applicant BBP’s application no. 2014/8843 and by the Second Commission of the Second Section, on 30 September 2014, as regards the other applicant SP’s application no. 2014/10107– that the admissibility examinations be conducted by the Section. 

          4. It was subsequently decided that these two applications (nos. 2014/10107 and 2014/8843) lodged by the SP and the BBP be joined having regard to the same subject-matter of the applications; and that the examination be made over the joined case-file.

          5. On 5 September 2014 the Section Head decided to send a copy of the application documents to the Ministry of Justice (“the Ministry”) for its observations.

          6. The impugned facts were notified to the Ministry on 5 September 2014, and the Ministry submitted its observations to the Court on 10 November 2014 following an extension of the time-limit fixed for that response.

          7. On 13 November 2014 the Ministry’s observations were notified to the applicant BBP, which submitted its counter-statements to the Court on 27 November 2014.

          8. At the end of the session held by the Second Section on 1 December 2015, the application was referred to the Plenary, pursuant to Article 28 § 3 of the Internal Regulations of the Court, as its examination was to be made by the Plenary in consideration of its nature.

          III. THE FACTS

          A. The Circumstances of the Case

          9. As stated in the application form and annexes thereto, the impugned facts may be summarized as follows:

          10. The Supreme Election Board’s decision, dated 22 June 2011 and no. K.1070, which demonstrated that at the end of the 24^th Period General Parliamentary Election of 12 June 2011, the applicant BBP and the other applicant SP received votes at the rates of 0,75% and 1,26% respectively, was promulgated on the Official Gazette dated 23 June 2011 and no. 27973.

          11. As the applicants failed to pass the election threshold of 10% stated in Article 33 § 1 of the Law on Election of Deputies, dated 10 June 1983 and no. 2839, at the 24^th Period General Parliamentarian Election, they could not obtain any seat in the National Assembly. They were also deprived of the state aid granted to political parties as they did not receive votes over the threshold of 7% provided for in Additional Article 1 § 5 of the Political Parties Law dated 22 April 1983 and no. 2820.

          12. Following the amendment by Law dated 2 March 2014 and no. 6529 to Additional Article 1 of Law no. 2820, the condition set for the political parties’ entitlement to state aid, which was to obtain over the threshold of 7% out of the total valid votes of the parliamentary elections, was reduced to 3%.

          13. The applicants lodged an individual application, maintaining that if they received -in the parliamentary election to be held in 2015- votes of the same rate with that of the 24^th Period General Parliamentary Election, the disputed provisions would apply; and that if they were deprived of state aid for that reason, this would constitute a violation.

          14. At the end of the 25^th Period General Parliamentary Election held on 7 July 2015 before the examination of this application, the applicants engaged in electoral alliance under the roof of the SP and received vote at the rate of 2,06%. Rates of votes received by the  BBP and the SP in the 26^th Period General Parliamentary Election were 0,53% and 0,68% respectively.

          B. Relevant Law

          15. Article 33 § 1 of Law no. 2839 reads as follows:

         “No candidates of a political party which has not obtained more than 10% of all of the valid votes throughout the country in general elections or, in the case of by-elections, in all of the by-elections districts, shall enter the parliament. The election of an independent candidate who has stood for elections in the list of candidates of a political party shall also depend on that political party’s exceeding this 10% threshold throughout the country during general election or in all of the by-elections districts during by-elections”. 

          16. Article 61 of Law no. 2820 reads as follows:

     “(Added by Article 6 of Law no. 4445 and dated 12 August 1999) Revenues of the political parties shall not be contrary to their purposes.

              Political parties may obtain revenues stated below:

              a)      Entrance fee and subscription fee taken from the party members,

              b)      Deputy fees taken from the party deputies,

              c)      (Amended by Article 6 of the Law no. 3420, dated 31/3/1988) Special fees taken from the deputyship, mayoralty, membership of the city council, membership of the provincial council (such fees shall be determined and collected by the competent central decision-making organs according to the principles of Article 64),

              d)      Revenues obtained through the sale of party flag, pennant, badge or any other insignias,

              e)      Sale values of party publications,

              f)       Money received in return for providing membership cards and party notebooks, receipts and papers,

              g)      Revenues obtained from social activities such as balls, entertainments and concerts organised by the party,

              h)      Revenues obtained from party property,

              i)       Donations,

              j)       (Added by Article 1 of the Law no. 3032, dated 27/6/1984) State aids. 

Tax, levy and legal fee shall, in any condition, be imposed in relation to the incomes of the written sources in the subparagraphs, excluding the revenues obtained from party properties stated in the subparagraph (h).”

          17. Additional Article 1 § 1 of Law no. 2820 reads as follows:

          “Political parties, which have been granted by the Supreme Board of Elections with the right to attend the latest general parliamentary elections and which have exceeded the general threshold indicated in Article 33 of Law no. 2839 on the Parliamentarian Elections, shall -every year- be allocated an appropriation to be paid by the Treasury the amount of which shall be equal to the 2/5000 of the amount set out under “Table (B)” of the current year’s general budget revenues.

          (First sentence of this paragraph has been amended by Article 21 of Law no. 4445 and dated 12/8/1999) Every year, this appropriation shall be distributed amongst the political parties qualified for State aid in accordance with the above-cited paragraph in proportion to the number of total valid votes received by the parties announced by the Supreme Board of Elections after the general elections. Such payments must be made within ten days following the enforcement of that year’s general budget law. 

          (Third paragraph has been repealed by Article 21 of Law no. 4445 and dated 12/8/1999)

          (Amended by Article 4 of Law no. 6529 and dated 2/3/2014) This aid shall be used solely for the needs or activities of the political party.

          (Amended by Article 4 of Law no. 6529 and dated 2/3/2014) Political parties, which have received more than 3% of the total valid votes at the general elections, shall as well be provided with State aid. The amount of the aid to be provided shall be determined in proportion to the amount paid -in line with paragraph two- to the least-paid-political party and to the valid votes received in the last general elections. However, this amount cannot be less than 1 million Turkish liras. In order to meet this expense, every year an appropriation shall be put into the budget of the Ministry of Finance.

          (Added by Article 1 of Law no. 3420 and dated 7/8/1988) The amount of aid stipulated in the paragraphs above shall be paid to the eligible political parties as three folds in the year of the general elections, and as two folds in the year of local elections. Where these two elections are held in the same year, the amount of the payment cannot exceed three-folds. The folded payments that will be made in line with this paragraph shall be made within ten days following the announcement of the decision of the Supreme Board of Elections concerning the elections calendar.

          ((Added by Article 21 of Law no. 4445 and dated 12/8/1999) The amount corresponding to two folds of the total value of the proceeds registered as revenue and of the immovable the title deeds of which have been registered with the Treasury shall be subtracted from the amount of the State aid that will be provided in line with this article to the political parties, whose proceeds have been registered with the Treasury as revenue and whose immovable properties have been registered with the Treasury at the land registry log under the scope of the provision enshrined in Article 76 of this Law herewith.”

          IV. EXAMINATION AND GROUNDS

          18. The Constitutional Court, at its session of 10 December 2015, examined the application and decided as follows:

          A. The Applicants’ Allegations

          19. The applicants maintained that Article 68 of the Constitution set forth that political parties shall be provided with adequate financial means in an equitable manner; that the inability of the political parties -which could not exceed the election threshold- to receive state aid was contrary to the principles of justice and equality and caused inequality of opportunity amongst political parties; and that as the impugned provisions would be most probably applied in terms of the elections to be held in 2015, they were potential victims of this amendment. They accordingly alleged that their rights enshrined in Articles 2, 5, 10, 13, 68, 69 and 90 of the Constitution had been violated.

          20. The applicants also requested the Court to refer the application to the Plenary of the Court in order for the annulment of the impugned provision on the state aid. One of the applicant, namely the SP, also requested to be retroactively paid the relevant amount of state aid. 

          B. The Court’s Assessment

          21. In its observations, the Ministry of Justice (“the Ministry”) primarily made assessments on the basis of the notion “potential victim”. In this sense, making a reference to the case-law of the European Court of Human Rights (“the ECHR”), the Ministry indicated that the ECHR interpreted the notion of victim autonomously and irrespective of domestic rules and that it thereby recognized the potential victim status. The Ministry however reminded that, pursuant to Article 46 § 1 of the Code on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011 and no. 6216, an individual application may be lodged only by those whose current and personal right had been directly affected on account of an act, action or negligence allegedly giving rise to a violation.   

          22. In its observations as to the merits, the Ministry noted that the ECHR had already rendered a decision in a case against Turkey where the latter examined the complaints concerning the rights to elect and stand for elections as well as the prohibition of discrimination as the political parties receiving under 7% of the valid votes at the general elections could not be granted state aid (see Özgürlük ve Dayanışma Partisi v. Turkey, no. 7819/03, 10 May 2012).  The Ministry stressed that in this decision, the ECHR found no violation of the prohibition of discrimination enshrined in Article 14 of the European Convention on Human Rights (“the Convention”) in conjunction with Article 3 of the Additional Protocol no. 1, concluding that the threshold which triggered eligibility for state aid in Turkey at the relevant time (7%) was the highest among the member states of the Council of Europe; however, this high threshold did not provide a monopoly to one political party for the allocation of the aid, and several political parties were entitled to this aid; and that the rates of the applicant party’s votes in the preceding elections were substantially below the minimum level of electoral support and would also have been deemed insufficient for the purposes of obtaining such funding in several other European countries.

          23. In its counter-statements against the Ministry’s observations, the applicant BBP noted in short that the application was admissible; and that the ECHR made a limited examination on the basis of discrimination. It accordingly emphasized the importance of financial support given to political parties for democracy.

          24. Maintaining that Article 68 of the Constitution set forth that political parties shall be provided with adequate financial means in an equitable manner; that the inability of the political parties -which could not exceed the election threshold- to receive state aid was contrary to the principles of justice and equality and caused inequality of opportunity amongst political parties, the applicants alleged that their rights set out in Articles 2, 5, 10, 13, 68, 69 and 90 of the Constitution had been violated. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). It has been therefore concluded that the applicants’ complaints mainly concern the rights to stand for election and engage in political activities and must be accordingly examined under Article 67 of the Constitution.

          25. Besides, the question whether the applicants, who lodged an individual application on account of a legislative act likely to be applied in respect of them in the future –regard being had to the application date–, have victim status must be discussed at the outset.

          1. Admissibility

          26. Given the rate of votes they received at the 24^th General Parliamentary Election, which was held in 2011, the applicants alleged that their probable inability to be entitled to state aid, pursuant to Additional Article 1 of Law no. 2820, if they received the same rate of votes also during the general elections of 2015 was contrary to the rights to stand for elections and engage in political activities enshrined in Article 67 of the Constitution. They accordingly requested annulment of the impugned provision of law.

          27. Article 148 § 3 of the Constitution reads as follows:

          “Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. …”

          28. Article 45 § 1, titled “Right to individual application”, of the Code no. 6216 reads as follows:

          “Everyone can apply to the Constitutional Court based on the claim that any one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights and the additional protocols thereto, to which Turkey is a party, which are guaranteed by the Constitution has been violated by public force.”  

          29. Article 46 § 1, titled “Persons who have the right to individual application”, of the Code no. 6216 reads as follows:

     “The individual application may only be lodged by those, whose current and personal right is directly affected due to the act, action or negligence allegedly resulting in the violation.”

          30. In Article 46, titled “Persons who have the right to individual application”, of the Code no. 6216, those who are entitled to lodge an individual application are enumerated. As per subparagraph 1 thereof, an individual may lodge an individual application with the Court on condition of co-existence of three basic pre-requisites, namely “violation of one of the applicant’s current rights” due to any impugned public act, action or negligence allegedly giving rise to a violation; “personal” and “direct” effect of this violation on the applicant; and the applicant’s claim to have victim status as a result thereof (see Fethi Ahmet Özer, no. 2013/6179, 20 March 2014, § 24).

          31. In the present case, in view of the results of the general parliamentary election of 2011, the applicant political parties lodged an individual application based on their probable inability to be entitled to the state aid of 3% as they will not probably receive the necessary rate of votes in 2015 general elections. In this sense, they alleged that the impugned legislative act likely to be applied in respect of them would lead to a violation. Therefore, the application is based on the probable outcome of the general parliamentary elections to be held in 2015. Under these circumstances, it is not possible to say that Additional Article 1 of Law no. 2820 will certainly apply to the applicants as of the application date. Consequently, it cannot be said that the applicants have “victim” status at the date of application. 

          32. On the other hand, as of the date when the applicants’ application has been under examination, two separate general parliamentary elections were held in 2015, at the end of which the applicant political parties failed to receive 3% of valid votes. If the present case is examined in this respect, it is explicit that the impugned provision of law has borne unfavourable consequences for the applicants and they cannot be therefore entitled to state aid. Accordingly, given the date when the case is under discussion, the applicants should be considered to have “victim” status. 

          33. Article 45 § 3, titled “Right to individual application”, of Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

     “Individual applications cannot be made directly against legislative transactions and regulatory administrative transactions and similarly, the rulings of the Constitutional Court and transactions that have been excluded from judicial review by the Constitution cannot be the subject of individual application.”

          34. It is accordingly set forth that an individual application cannot be lodged against the impugned provision of law and legislative acts.

          35. Individual application is a constitutional safeguard whereby violations of fundamental rights sustained by individuals are found and which involves effective means for redress of the violation found. However, individual application to the Constitutional Court has not been introduced as a remedy whereby an alleged unconstitutionality of a public arrangement could be raised in an abstract manner. In case of violation of any fundamental rights and freedoms due to a legislative act or regulatory administrative action, an individual application cannot be lodged directly against such actions but against an act, action and negligence resulting from the implementation of this legislative or regulatory administrative action (see Süleyman Erte, no. 2013/469, 16 April 2013, §§ 15, 17; and Serkan Acar, no. 2013/1613, 2 October 2013, § 37).

          36. It appears that allegations raised by the applicants, which could not receive the state aid for failing to exceed the electoral threshold of 3% at the 24^th General Parliamentary Elections, are not –as of the date when the application was adjudicated– directly against the legislative act but against the implicit action resulting from the implementation of this legislative act. It must be therefore accepted that the applicants have victim status within the meaning of individual application.

          37. The application was declared admissible for not being manifestly ill-founded and there being no ground declaring it inadmissible. However, Justice Mr. Hicabi Dursun did not agree with this conclusion.

          2. Merits

          38. As stated in Additional Article 1 § 1 of Law no. 2820, in order for a political party to be entitled to state aid, it must be granted by the Supreme Board of Elections with the right to attend the latest general parliamentary elections and it must exceed the general threshold of 10% indicated in Article 33 of Law no. 2839. However, according to the first sentence of Article 1 § 4, if a political party has received over 3% of the valid votes, it is entitled to state aid even if it has not exceeded the general threshold stated in Article 33 of Law no. 2839. As a result, the pre-requisite for a political party to be granted state aid is to attend the general parliamentary elections and to receive over 3% of valid votes at these elections.

          39. Article 67 § 1, titled “Rights to elect, to stand for elections and to engage in political activities”, of the Constitution reads as follows:

     “In conformity with the conditions set forth in the law, citizens have the rights to elect, to stand for elections, to engage in political activities independently or in a political party, and to take part in a referendum.”

          40. The last paragraph of Article 68 of the Constitution reads as follows:

     “The State shall provide the political parties with adequate financial means in an equitable manner. The principles regarding aid to political parties, as well as collection of dues and donations are regulated by law.”

          41. Article 3 of the Protocol no. 1 to the Convention reads as follows:

     “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.”

          42. In Article 67 of the Constitution, the rights to elect, to stand for election as well as to engage in political activities either independently or within a political party are enshrined. Political parties regarded as indispensable elements of pluralist democratic regimes are institutions which play a decisive role in the formation of national will, sound functioning of constitutional regime and existence of political order (see Şeyhmus Turan, no. 2014/9894, 22 June 2015, § 66). Therefore, political parties are described as indispensable elements of the democratic political life by Article 68 of the Constitution in the last paragraph of which it is set out that they shall be granted state aid in an adequate and equitable manner.

          43. Similarly, the ECHR recognises the “right of free election” as one of the most significant principles of the democracy, which is the primary element of the European public order. The ECHR has noted that the rights safeguarded under Article 3 of the Additional Protocol no.1 to the Convention are of vital importance for the establishment and maintenance of foundations of an effective and sound democracy based on rule of law. It is explicitly stated in the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it (see United Communist Party of Turkey and Others v. Turkey; no. 19392/92, 30 January 1998, § 45; Mathieu-Mohin and Clerfayt v. Belgium, no. 9267/81, 2 March 1987, § 47; Ždanoka v. Latvia, no. 58278/22, 16 March 2006, §§ 98 and 103; and Yumak and Sadak v. Turkey [GC], no. 10226/03, 8 July 2008, § 105).

          44. In order for the improvement and maintenance of pluralist democracies, it is essential that the rights to elect, stand for elections as well as engage in political activities exist and are also ensured to be enjoyed during the elections along with the safeguards provided by contemporary democracies.  Therefore, these rights must be not only theoretical or illusory but also practical and effective (see United Communist Party of Turkey and Others v. Turkey, § 33).

          45. With respect to individual applications lodged under the rights to elect, stand for elections as well as engage in political activities enshrined in Article 67 of the Constitution, the Constitutional Court’s duty is, due to the subsidiarity nature of individual application mechanism as an extraordinary remedy, to examine and ascertain whether there is any interference with the rights in question; if any, whether the impugned interference has impaired the essence of that right; whether any legitimate aim has been pursued; whether the right has been restricted to the extent that it would undermine its efficiency; and whether the means applied have been proportionate.

          46. Political parties are to have adequate financial means, either non-cash or in cash, which are necessary for the fulfilment of their above-mentioned roles. In cases where political parties ensuring manifestation of “national will” by way of attending parliamentary and local elections are not adequately supported by the public, depriving them of the opportunity to receive state aid to the extent required by the multi-party democratic order may cause them to face the threat of being under influence and pressure of financially-strong individuals and institutions. Such a threat impairing the necessity that intra-party activities must comply with the principles of democracy may be eliminated only through state aid (see the Court’s judgment no. E.1988/39 K.1989/29, 6 July 1989).

          47. Providing political parties with adequate financial means in an equitable manner by the State is also introduced as an obligation by the last paragraph of Article 68 of the Constitution. In this sense, it is explicit that setting a threshold of 3%, by virtue of Additional Article 1 of Law no. 2820, for the political parties’ entitlement to state aid constitutes an interference with the rights to stand for election and engage in political activities. Another issue required to be also discussed is whether introducing certain criteria for being entitled to state aid had infringed the essence of the right to stand for election to the extent that would undermine its efficiency and whether the means applied have been proportionate.

          48. In the Recommendation of the Parliamentary Assembly of the Council of Europe, no. 1516 and dated 22 May 2001, on the financing of political parties, it is stressed that political parties need funding in order to get a possibility to appear on the political scene as well as to get political support for its ideas, and it is thereby recalled that arrangements as to political parties should be made in consideration of these facts. Besides, the European Commission for Democracy through Law (Venice Commission) adopted, at its 46^th Plenary Meeting on 9-10 March 2001, “the Guidelines on the Financing of Political Parties”. According to the Guidelines, public funding should cover each party represented in the parliamentary. However, in order to ensure equality of opportunity among different political parties, public funding may also cover the parties representing a significant part of the voters and nominating a candidate in the elections. Level of public financial assistance shall be determined periodically by the legislator and by taking into consideration objective criteria.

          49. The European Commission of Human Rights and the ECHR also examined several applications concerning state aid to political parties. In the case of New Horizons v. Southern Cyprus (no. 40436/98, 10 September 1998) lodged against the Southern Cyprus concerning the law which set the condition of receiving at least 3% of the valid votes for receiving state aid, the Commission recalls that neither the Convention nor its Protocols guarantee a right for political parties to receive financial assistance from the State and that Article 3 of the Additional Protocol no. 1 to the Convention is interpreted in a way that would afford the right to stand for election to candidates and political parties. Moreover, according to the Convention organs' case-law, the phrase "under the conditions which will ensure the free expression of the opinion of the people in the choice of the legislature" in Article 3 of Protocol No. 1 implies essentially the right of equality of treatment of all citizens in the exercise of their rights to elect and their right to stand for election (see Mathieu-Mohin and Clerfaty v. Belgium, § 54). 

          50. It is explicit that the political parties hardly maintain its activities merely through funding obtained from party membership or ordinary financial sources without receiving state aid. It becomes even more apparent notably today when political competition has increased and means of sophisticated and expensive means of communication have been continuously improved. State aid intends to prevent political parties from being involved in any corruption and facing the risk of being under impression and pressure of any economically-strong figures and institutions. In this sense, providing state aid intends to reinforce political pluralism as well as to ensure fulfilment of the duties expected from democratic institutions (see Freedom and Solidarity Party v. Turkey, § 37).

          51. However, it is necessary to set a minimum limit for the state aid. Otherwise, a system with no minimum limit may cause adverse effect and thereby lead to an increase in the number of political parties expecting to benefit from aid. That is because each vote received may be considered as an income channel in consideration of the state aid. Therefore, envisaging a limit through Additional Article 1 of Law no. 2820 in order for political parties to get state aid cannot be considered to undermine the efficiency of the right to stand for election. In this sense, there are no uniform rules in this sphere in the majority of European countries (see Freedom and Solidarity Party v. Turkey, § 38).

          52. Besides, it is expected through a legal arrangement concerning state aid that an excessive and ineffective inflation of candidates will be balanced by the political parties’ function to reinforce democratic pluralism. In other words, setting a proportionate limit is necessary for ensuring efficiency of the right to stand for elections. 

          53. In the present case, the applicants failed to exceed the threshold of 3% at the 24^th General Parliamentary Elections of 2011 as well as at the 25^th and 26^th General Parliamentary Elections of 2015. This margin is far below the ten percent (10%)    threshold for political parties to enter parliament. Therefore, political parties failing to receive the required rate of votes for having a seat in the parliament are also entitled to the state aid. Accordingly, it cannot be said that only political parties exceeding 10% threshold could receive the state aid.

          54. Besides, the mere source of income of political parties is not the state aid directly provided. Other incomes of political parties are set forth in Article 61 of Law no. 2820. It is acknowledged that incomes obtained through the sources of incomes specified in the Article, other than “incomes to be obtained from the party’s assets”, may in no way be subject to taxes, duties and charges.

          55. Consequently, it cannot be concluded that in the present case, the applicants’ inability to get state aid for failing to receive 3% of the valid votes has restricted the right to stand for elections to the extent that would undermine its efficiency and that the methods applied were disproportionate.

          56. For these reasons, the Court found no violation of the rights to stand for elections and engage in political activities which are enshrined in Article 67 of the Constitution. Mr. Hicabi DURSUN followed the majority but on a different grounds.

          JUDGMENT

          For these reasons, the Court held on 10 December 2015 that

          A. By majority and by dissenting vote of Mr. Hicabi DURSUN, the complaints as to the alleged violation of Article 67 of the Constitution be DECLARED ADMISSIBLE;

          B. By majority, there was NO VIOLATION of the rights to stand for elections and engage in political activities safeguarded by Article 67 of the Constitution;

          C. The court expenses be COVERED by the applicants.

DISSENTING OPINION OF JUSTICE HİCABI DURSUN AND DIFFERENT GROUND

          1. The applicants maintained that as set out Additional Article 1 § 4 of the Law no. 2820, political parties were to receive 3% of valid votes at the general parliamentary elections in order to get the state aid, which was in breach of the principles of justice and equality as well as led to inequality of opportunity among political parties; that it was set forth in Article 68 of the Constitution that political parties would be provided with adequate financial means in an equitable manner; that the inability of the political parties -which could not exceed the election threshold- to receive state aid was not equitable; and that as the impugned provisions would be most probably applied to the elections to be held in 2015, they were potential victims of this legislative act. They accordingly alleged that their rights enshrined in Articles 2, 10, 13 and 68 of the Constitution had been violated. They also requested the Court to refer the application to the Plenary of the Court in order for the annulment of the impugned provision.

          2. Additional Article 1 § 4 of the Political Parties Law no. 2820 and dated 22 April 1983 reads as follows:

          “Political parties, which have received more than 3% of the total valid votes at the general elections, shall as well be provided with State aid. The amount of the aid to be provided shall be determined in proportion to the amount paid -in line with paragraph two- to the least-paid-political party and to the valid votes received in the last general elections. However, this amount cannot be less than 1 million Turkish liras. In order to meet this expense, every year an appropriation shall be put into the budget of the Ministry of Finance.”

          3. The majority of the Plenary of the Court proceeded with the examination of the merits of the application and consequently found no violation of the rights to election and engage in political activities enshrined in Article 67 of the Constitution. However, I do not agree with the majority’s conclusion for the following reasons.

          4. Article 45 § 3, titled “Right to individual application”, of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

          “Individual applications cannot be made directly against legislative transactions and regulatory administrative transactions and similarly, the rulings of the Constitutional Court and transactions that have been excluded from judicial review by the Constitution cannot be the subject of individual application.”

          5. It is explicitly set out in Article 45 § 3 of Code no. 6216 that individual applications cannot be lodged directly against legislative acts and regulatory administrative actions.

          6. The individual application remedy is a constitutional safeguard whereby alleged violations of the fundamental rights sustained by individuals are found and which offers effective means for redress of the violation found. Within the scope of this safeguard, individuals are not entitled to directly request annulment of the legislative act. Therefore, the individual application before the Constitutional Court cannot be regarded as a remedy whereby an alleged unconstitutionality of a public arrangement may be brought in an abstract manner before the Court (see the Court’s decision no. 2012/30, 5 March 2013, §§ 16-17).

          7. In the present case giving rise to the individual application, the applicants requested the annulment of Additional Article 1 § 4 of the Political Parties Law no. 2820, “Political parties, which have received more than 3% of the total valid votes at the general elections, shall as well be provided with State aid”, for being unconstitutional.

          8. An individual application can be lodged against directly against the legislative act itself but against an act, action or negligence committed in the context of its implementation. In other words, an alleged unconstitutionality of a legislative act cannot be brought, directly and abstractly, before the Constitutional Court (see the Court’s judgment no. 2014/8842, 6 January 2015, § 26).

          9. It has been observed that the applicants alleged that the legislative act probably applicable to them was in breach of their rights, relying on the probable outcome of the 2015 General Parliamentary Elections. In the judgment, the majority of the Court decided that the applicants lacked victim status by the date when their application was lodged. However, given the fact that 2015 general elections had been held by the date when their application was under examination, the majority reached the conclusion that the applicant had victim status, which was inconsistent according to me. Accordingly, making a distinction as pre-election and post-election period would lead to two different conclusions: “lack of competence ratione materiae” when the applications were examined before the elections; and “potential victim” when examined after the elections. Such a situation would trigger an inequality between the applicants on the same matter as well as a controversial judgment.

          10. The applicant political parties previously lodged an individual application alleging that the election threshold of 10% was in breach of their constitutional rights. By its decision no. 2014/8842 and dated 6 January 2015, the Court declared the applicants’ allegations inadmissible for lack of competence ratione materiae as “…an individual application cannot be lodged against directly against the legislative act itself but against an act, action or negligence committed in the context of its implementation. In other words, an alleged unconstitutionality of a legislative act cannot be brought, directly and abstractly, before the Constitutional Court”. The subject-matter of the present application did not differ from that of their previous application regarding the election threshold of 10%.

          11. For these reasons, as it has been revealed that a legislative act was directly made subject to the individual application, I consider that the application should have been declared inadmissible for “lack of competence ratione materiae” without any further examination as to the other admissibility criteria. I do not therefore agree with the majority.  

          12. However, the majority of the Court proceeded with the merits of the case as the applicants’ allegations that they had victim status due to the implementation of the impugned provision of the Political Party Law during the 2015 General Parliamentary Elections and that they lodged an individual application not against the legislative act but against the act, action or negligence committed in the context of its implementation were found justified.

          13. Article 148 § 3 of the Constitution reads as follows:

          “Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted.”

          14. Article 45 § 2, titled “Right to individual application”, of the Code no. 6216 reads as follows:

          “All of the administrative and judicial remedies that have been prescribed in the code regarding the action, the act or the negligence allegedly having caused the violation must have been exhausted before making an individual application.”  

15. According to the cited provisions of the Constitution and the Law, an individual application may be lodged before the Constitutional Court only after the ordinary legal remedies are exhausted. In its several judgments, the Court has explained the objective of the principle of exhaustion of available remedies. The raison d'être of this principle is to enable the first-instance courts, regional courts as well as appeal courts to prevent and redress the violation of the constitutional rights before an individual application being lodged. This requirement points out that the primary guardian of the fundamental rights and freedoms is administrative authorities and inferior courts, whereas the individual application to the Constitutional Court is the secondary/subsidiary protective mechanism.

16. As noted in the previous judgments of the Constitutional Court, respect for fundamental rights and freedoms is a constitutional duty incumbent on all organs of the State. The liability to redress the right violations taking place due to the ignorance of this duty is incumbent on administrative and judicial authorities. Therefore, it essential that the alleged violations of the fundamental rights and freedoms be primarily asserted before, as well as dealt with and adjudicated by, the inferior courts. Pursuant to this principle, the applicant should have duly brought his complaint in question primarily before the competent administrative and judicial authorities on time, to submit the relevant information and evidence to these authorities in due time as well as to also display due diligence in order to pursue his case and application (see, among many other authorities, the Court’s judgments no. 2012/403, 26 March 2013, §§ 16 and 17; no. 2013/850, 19 December 2013, § 19; no. 2013/5028, 14 January 2014, §§ 23 and 24; and no. 2012/254, 6 February 2014, § 31).

17. In the individual application (no. 2013/3389, 16 September 2015) lodged on the allegation that the applicant’s rights to property, to a fair trial as well as to an effective remedy had been violated due to non-imbursement of the application fees received from the applicant, who filed a complaint with the Public Procurement Authority (“PPA”) as regards the tenders made by different institutions, despite the outcome in his favour, the Court, relying on Articles 11 and 12 of the Code of Administrative Procedure no. 2577, declared the application inadmissible for “non-exhaustion of available remedies” on the grounds that the applicant should have filed a request with the PPA for reimbursement of the fees previously collected from him and if rejected by the PPA, he should have then brought an action before the administrative courts.

18. This situation is applicable also to the applicants. Accordingly, they should have filed their requests with the relevant institution(s) and subsequently brought an action if their requests were rejected. If the relevant provision on the political parties’ entitlement to state aid is considered to be unconstitutional, it is possible, pursuant to Article 152 of the Constitution, to file a request with the Constitutional Court for its annulment through the substantive constitutionality review process.

19. For these reasons, I do not concur with the majority’s judgment on the merits on the grounds that it has been observed that the applicants lodged an individual application with the Constitutional Court without bringing an action and using the opportunity of substantive constitutionality review to be made by the Court which constitute effective remedies for the alleged violation,; and that their application should have been therefore declared inadmissible for “non-exhaustion of available remedies”.