Applicability of the right to free elections clause of the ECHR to presidential elections: the case of Turkey's new presidential system

Abstract

ABSTRACT Although Article 3 of Protocol 1 to the ECHR, which guarantees the rights of individuals to vote or to stand in free elections, is provided only for elections in which the legislature is chosen, the term legislature has not been interpreted by the ECtHR in a manner that excludes all bodies other than national parliaments. Whether various elections fall within the scope of P1-3 has been determined by examining the nature of the rulemaking power of the body at stake. In various applications regarding presidential elections, the Court has examined the influence of the President on the Parliament and his/her power to issue decrees, but it has not applied P1-3 in any presidential election so far. While the parliamentary and semi-presidential systems that most European countries adopt justify that conclusion, Turkey, which switched from a parliamentary system to a presidential system that favours the President over legislative and judicial branches, presents a significant exception. In this regard, this Article analyzes the presidential system that Turkey adopted along with the 2017 constitutional amendments within the Court's case-law and shows why presidential elections held under this system should be and probably will be considered to be within the scope of P1-3.