I. Introduction*
On November 21, 2007, the Grand Chamber of the European Court of Human Rights will hear the case of Yumak and Sadak v. Turkey. The question for the Council of Europe’s highest court will be whether Turkey’s 10% electoral threshold amounts to a denial of free expression of the opinion of the people in the choice of the legislature, thereby constituting a violation of Article 3 of Protocol 1 of the European Convention of Human Rights. The Grand Chamber has never before considered a case on electoral systems, preferring to leave this controversial area to the discretion of the member states by granting to them a wide ‘margin of appreciation.’ At a time when the Court remains unsure of its own boundaries, and with judicial institutions being regarded with increasing skepticism by those who fear a “government of judges,” the ruling will have crucial implications for the development of democracy within the Council of Europe’s Member States.
The impact of the Court’s ruling could even go beyond re-shaping the electoral laws within the European Union (“EU”) and have an impact on Turkey’s ambitions for European accession. With integration at the top of the EU agenda, the prospect of Turkish membership will be increasingly remote if Turkey is seen as a country whose values will disrupt the process of deepening integration. Two of the most problematic issues facing Turkey in this context are the prolonged armed conflict with the Kurdish secessionist movement, the Kurdistan Workers’ Party (“PKK”), and the significant influence of the military in Turkish politics. The European community sees these issues as both costly for the Turkish economy, hence a potential drain from the EU budget, and undemocratic in the non-recognition of minority rights and
pluralism. The present case touches on both areas. The 10% threshold was initially imposed by the military during the 1980 intervention, and its effect has been to exclude minorities, especially the Kurdish minority, from the National Assembly. A ruling against Turkey would therefore not only establish an important judicial precedent within the European community; it would also test Turkey’s resolve to join the EU. This article looks at the issues that will be facing the Grand Chamber and the context within international law.
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