TUR-2008-2-006
a)  Turkey / b)  Constitutional Court / c) / d)  29-05-2008 / e)  E.2008/33, K.2008/113 / f)  Annulment of Law no. 5749 / g)  Resmi Gazete (Official Gazette), 05.07.2008, 26927 / h) CODICES (Turkish).
 
Keywords of the systematic thesaurus:
 
 
Institutions - Elections and instruments of direct democracy - Electoral system - Method of voting.
Institutions - Elections and instruments of direct democracy - Voting procedures - Casting of votes.
Fundamental Rights - Civil and political rights - Electoral rights - Freedom of voting.
Fundamental Rights - Civil and political rights - Electoral rights - Secret ballot.
 
Keywords of the alphabetical index:
 
Election, free / Election, ballot, secret / Election, voting, right, persons abroad / Election, postal vote.
 
Headnotes:
 
Postal voting cannot guarantee a secret ballot, as it leaves voters unprotected against unwanted influence from family members and social environment. It runs counter to the principle of free elections.
 
Summary:
 
I. Article 10 of Law no. 5749 amended the Law on the General Principles of Elections and Electoral Register (Law no. 298) and added some new articles. The Article 94.A regulates voting procedures for Turkish citizens living abroad. Under this regulation, Turkish citizens living abroad may vote in parliamentary and presidential Elections and constitutional referenda. They may cast their votes by one of four alternative voting methods, namely voting at the customs, voting at polling stations, postal voting and electronic voting. The High Electoral Commission shall decide, after consultation with the Ministry of Foreign Affairs, which voting method shall apply in each country. The amended Article 94.B regulates postal voting. Under this article, a new Abroad County Election Commission will be set up in Ankara. Should the High Electoral Commission decide to apply postal voting for Turkish citizens living in a particular country, the Abroad County Election Commission shall send a postal package to registered voters seventy-five days prior to polling day. Registered voters will cast their vote on a special ballot paper, place it in the envelope provided, place that envelope inside another envelope bearing the address of the Abroad County Election Commission and put it in the post.
 
The main opposition party parliamentary group asked the Constitutional Court to assess the compliance of the phrase "postal voting" in Article 94.A and Article 94.B of Law no. 298 with the Constitution. The applicant party parliamentary group argued that postal voting leaves individual voters vulnerable to the influence of family members and social groups such as religious or ethnic communities. It also pointed out that postal voting is very open to electoral fraud, and as a result, the above provisions were in conflict with Articles 2, 11, 67 and  79 of the Constitution. It asked the Constitutional Court to annul these provisions.
 
II. The Constitutional Court stated that the right to vote is a constitutional right that should be respected, whether a citizen lives in his or her homeland or overseas. That right should, however, be exercised in accordance with constitutional principles such as free, equal, secret, and direct and universal suffrage, and public counting of votes. All these are contained in Article 67.2 of the Constitution. The Court ruled that postal voting regulated by the provisions in dispute was very far from guaranteeing secret and free voting in elections, and was in conflict with Article 67 of the Constitution. It annulled the phrase "postal voting" in Article 94.A and Article 94.B of Law no. 298.
 
Chief Justice H. Kilic and Justices Sacit Adali, Fulya Kantarcioglu and Serruh Kaleli put forward concurring opinions.
 
Languages:
 
Turkish.