The Right to Stand for Election in the Light of the Decisions of the European Court of Human Rights and the Turkish Constitutional Court

The right to vote, to be elected, and to engage in political activities, guaranteed under Article 67 of the 1982 Constitution, has a broader scope of regulation compared to the right to free elections regulated in Article 3 of Protocol No. 1 to the European Convention on Human Rights. While the Convention limits the right to be elected to elections of legislative bodies and assemblies that perform legislative functions, the Constitution protects the right to be elected more comprehensively for all types of elections. The broad regulation of fundamental rights and freedoms in constitutions is essential for the existence of democracy in all political systems. However, for democracy to truly exist, it is not sufficient for these rights and freedoms to merely exist in constitutions. These rights and freedoms must also be effectively protected. Otherwise, these rights cannot be effectively exercised as they would remain merely apparent rights. In democratic regimes, the source of governmental authority, and therefore the foundation of legitimacy, lies in elections. For this reason, the primary purpose of general parliamentary elections in multi-party democracies is to determine which party or parties will govern the country for a specific period, in other words, which party or parties will form the government; and which party or parties will serve as opposition to fulfill the oversight function. The transfer of power through elections is only one dimension of democracy. The fundamental value that democracy protects is human rights. This thesis, titled "The Right to be Elected in Light of European Court of Human Rights Decisions and Turkish Constitutional Court Decisions", consists of two chapters: "The Normative Framework of the Right to Be Elected in the European Convention on Human Rights and Turkish Constitutional Law" and "The Limitation of the Right to Be Elected in ECtHR and Constitutional Court Decisions." Within this scope, the jurisprudence of both courts has been examined, and legal disputes and practical deficiencies regarding the right to be elected have been identified. Thus, the aim is to contribute to strengthening the principle of democratic rule of law. As a result of the findings and evaluations obtained in the thesis, the following main determinations have been reached: First, in the Constitutional Court's norm review decisions, it is observed that the guarantees regarding the right to vote, be elected, and engage in political activities regulated in Article 67 of the Constitution are applied to cover all elections without making any distinction between election types. However, in individual application decisions, the Constitutional Court's limitation of the scope of the right to be elected only to legislative body elections creates internal inconsistency and leads to a problematic situation in terms of protecting rights. The Constitutional Court's adoption of a broader scope in norm review while narrowing its approach in individual applications does not fully reflect the guarantees provided by the Constitution. Second, the electoral threshold applied in Turkey has been adopted with the aim of establishing a balance between the principles of justice in representation and stability in governance. However, the national threshold at ten percent level was criticized for being considerably above European standards. Third, access to media and representation in media during election campaigns is of vital importance for the effective exercise of the right to be elected. Current regulations only determine rules regarding propaganda shortly before elections. Fourth, the five-year political ban application regulated in the ninth paragraph of Article 69 of the Constitution may constitute a disproportionate interference with the right to be elected. The application of this ban without making a gradation among individuals' actions constitutes a disproportionate interference with the right to be elected. Fifth, the conditions regarding eligibility for parliamentary election regulated in Article 76 of the Constitution constitute the natural limits of the right to be elected. However, the phrase "even if they have been pardoned" in this article carries the risk of imposing an indefinite limitation on the right to be elected. Sixth, the close relationship between parliamentary immunity and the right to be elected has become evident especially in the problem of imprisoned parliamentarians. The provision regarding the exclusion of situations in Article 14 of the Constitution from the scope of immunity has been found uncertain and unpredictable by the Constitutional Court. This uncertainty has led to significant limitations in the exercise of parliamentarians' rights to be elected and engage in political activities. Parliamentarians represent the will of the electorate while performing their duties. The healthiest realization of this representation depends on every intervention in the right to be elected being compatible with the requirements of democratic social order, proportionate, and predictable. Every intervention in the right to be elected also means intervention in voters' preferences and democratic participation rights. Therefore, protecting the right to be elected is an indispensable requirement for the healthy functioning of democratic society and the rule of law. Keywords: Right to Be Elected, Right to Engage in Political Activities, Parliamentary Immunity, European Court of Human Rights, Constitutional Court