CASE OF PETKOV AND OTHERS v. BULGARIA
(Applications nos. 77568/01, 178/02 and 505/02)
11 June 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Petkov and Others v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 5 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
B. Participation in the 2001 parliamentary elections of persons who had allegedly collaborated with the former State security agencies
C. The annulment of the applicants' registration as candidates for Parliament and the failure to reinstate them on the list of candidates
1. The case of Mr Petkov
2. The case of Mr Georgiev
3. The case of Mr Dimitrov
(a) The proceedings before the electoral authorities and the Supreme Administrative Court
(b) The proceedings before the Constitutional Court
(c) Action under the 1988 State Responsibility for Damage Act
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 1991 Constitution
B. Relevant provisions of the 2001 Election of Members of Parliament Act
1. General organisation of elections
2. Possibility for parties and coalitions to withdraw candidates on account of their links with the former State security agencies
“Parties and coalitions may request annulment of the registration of a person featuring on their candidate list in respect of whom information is revealed indicating that he or she collaborated with the former State security agencies. In such cases the parties and coalitions may propose a new candidate not later than seven days before the election date.”
“Before registering lists of candidates with the regional electoral commissions, the central leadership of political parties and coalitions may request [the Dossiers Commission] to conduct checks on the individuals who have accepted nomination as candidates for Parliament on their lists. The checks must be carried out no later than seven days after the request.”
3. Legal challenges to the electoral authorities' decisions
C. Relevant provisions of the Dossiers Act
D. The 1997 Supreme Administrative Court Act
E. The 1988 State Responsibility for Damage Act
III. RELEVANT INTERNATIONAL DOCUMENTS
A. The Code of Good Practice in Electoral Matters
“GUIDELINES ON ELECTIONS
2. Regulatory levels and stability of electoral law
b. The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.
3.3. An effective system of appeal
a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible.
d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections.
e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned.
f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections.
2. Regulatory levels and stability of electoral law
63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections.
3.3. An effective system of appeal
92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.
93. There are two possible solutions:
– appeals may be heard by the ordinary courts, a special court or the constitutional court;
– appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experience[d] with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second.
94. Appeal to parliament, as the judge of its own election, is sometimes provided for but could result in political decisions. It is acceptable as a first instance in places where it is long established, but a judicial appeal should then be possible.
95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.
96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.
97. It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission, or where the powers of different courts – e.g. the ordinary courts and the constitutional court – are not clearly differentiated.
98. Disputes relating to the electoral registers, which are the responsibility, for example, of the local administration operating under the supervision of or in co operation with the electoral commissions, can be dealt with by courts of first instance.
99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections.
100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded.
101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated.
102. Where higher level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.”
B. Final report on the parliamentary elections in Bulgaria by the Office for Democratic Institutions and Human Rights of the Organization for Security and Co operation in Europe (“OSCE”)
IV. LEGISLATIVE FRAMEWORK
...some aspects of the current [2001 Election of Members of Parliament Act] are of concern. While some of these stem from the previous law, others pertain to newly introduced provisions.
1. Under [section 48(5)], candidate lists may be changed ... if “data” is discovered indicating that they collaborated with the former State security agencies. Parties and coalitions may make these changes up to seven days before election day. The possibility of such eleventh-hour changes to the lists posed problems not only for election administrators and courts, but also for parties and voters whose understanding of candidates running in the elections was undoubtedly affected.
2. The newly adopted [section 48(5)] provides that parties and coalitions may withdraw candidates in case “data” on the candidates is found in the files of the Commission on the Documents of the Former State Security Service. A clear definition of the term “data” is needed to provide guidance. There is a particular need to define clearly whether these data constitute full evidence for collaboration with the former State security services. The current legal provisions in the Election Law as well as in the Law on Access to the Documents of the Former State Security Service led to controversial withdrawals of candidates and a number of court cases.
Parties and coalitions may withdraw nominated candidates and nominate substitutes up to 30 days before the elections without having to abide by additional legal requirements. After that deadline, parties may withdraw a candidate from the ticket only if he or she is “permanently incapable to run in the elections” or if “data” exists that the candidate had collaborated with the former State security agencies. In these cases, parties may nominate a new candidate up to seven days before election day.
C. COMPLAINTS AND APPEALS
A particular, extended controversy related to changes to the candidate lists. Under the [2001 Election of Members of Parliament Act], candidate lists may be changed if “data” is discovered indicating that candidates collaborated with the former State security agencies. In this case, parties and coalitions can request the [Regional Electoral Commissions] to withdraw a name from their candidate lists. Accordingly, the [Regional Electoral Commissions] withdrew several candidates from various lists, eight of whom appealed the [Regional Electoral Commissions] decisions to the [Central Electoral Commission]. The [Central Electoral Commission] rejected the appeals, arguing that parties and coalitions have the exclusive right to evaluate the available data on collaboration with the State security agencies and to withdraw candidates. Furthermore, the [Central Electoral Commission] argued that candidates do not have the right to appeal the [Regional Electoral Commissions] decisions taken in accordance to [section 48(5)] of the [2001 Election of Members of Parliament Act], since this article does not establish the right of appeal for a candidate whose registration is annulled upon request of his/her party or coalition based on the existence of the above mentioned data on collaboration with the former State security agencies.
Some candidates appealed to the Supreme Administrative Court, which reversed the [Central Electoral Commission] decision two days before the election and reinstated these candidates on their original lists. The Supreme Administrative Court recognized the right of candidates to appeal their withdrawals, stating that they have a legal interest because their personal rights as candidates are affected by such measures. Furthermore, the Supreme Administrative Court argued that in such cases, [Regional Electoral Commissions] are obligated to examine the available data on collaboration with the former State security agencies and decide accordingly. However, the [Central Electoral Commission] instructed the respective [Regional Electoral Commissions] not to amend the candidate lists in question, stating that the decision of the Supreme Administrative Court was not in force, as it could be appealed within the next 14 days.
Following this [Central Electoral Commission] instruction, the candidates appealed to the Supreme Administrative Court again and were reinstated once more on 18 and 19 June, just after the elections had been held. The controversy looks set to continue, as the [Central Electoral Commission] has filed additional appeals, notwithstanding [section 23(3)] of the [2001 Election of Members of Parliament Act], which states that decisions of the Supreme Administrative Court are final in the context of election disputes. At any rate, [Central Electoral Commission] Decision No. 348 of 20 June proclaimed the names of elected candidates according to the candidate lists that did not contain the withdrawn candidates.
The later [Central Electoral Commission] decisions are of particular concern. These decisions disregard the rulings of the Court by postponing the settlement of the dispute until after election day. As a consequence, the candidates at issue could not participate in the elections. Furthermore, [Central Electoral Commission] Decision 348 disregarded the court ruling again, as it proclaimed the names of elected candidates regardless of the fact that some candidates were still seeking legal redress.
Additionally, the [Central Electoral Commission] stated that the rulings of the Supreme Administrative Court were not in compliance with the law and thus were not binding. The [Central Electoral Commission] argued in particular that the court did not have jurisdiction over the case at issue. While the jurisdiction of the court was controversial to some extent, this line of argument of the [Central Electoral Commission] is of great concern. It is not within the competence of the parties to determine whether the decision of the court is binding or not. This conflict between two senior State institutions raises serious questions regarding the application of the rule of law in Bulgaria in this instance and should be resolved by the Constitutional Court.
1. The deadline for parties and coalitions to change candidate lists should be set further in advance of election day.
2. A clear definition of the term “data” under [section 48(5)] of the [2001 Election of Members of Parliament Act].
3. A cut-off date for resignation of candidates and withdrawal of parties and coalitions well in advance of election day would prevent last minute changes to the ballot or the use of ballots that have not been updated. ...”
IV. COMPARATIVE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION
“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.”
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
B. Non pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, in respect of costs and expenses, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants:
(i) to Mr Georgiev, EUR 2,500 (two thousand five hundred euros);
(ii) to Mr Dimitrov, EUR 3,000 (three thousand euros);
(b) that from the expiry of the above mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 11 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judges Maruste and Jaeger is annexed to this judgment.
DISSENTING OPINION OF JUDGES
MARUSTE AND JAEGER
We disagree with the majority for two main reasons. First, we consider that the relevant domestic law provision regulating the annulment of the registration of election candidates was precise and clear. Secondly, we regard the last minute change in the list of candidates, ordered by the Supreme Administrative Court, as an unnecessary disturbance of the free conduct of the elections.
Before explaining our position in these matters in detail we would like to submit as a general remark that genuine democracy has the legitimate right to defend itself. It is for the legitimately elected parliament to assess the political situation and to establish rules which govern elections, including who can be a candidate and the conditions of eligibility.
We maintain the position that the relevant law governing elections at the material time in Bulgaria was clear and foreseeable. The valid law in the 2001 elections – the 2001 Election of Members of Parliament Act – stipulated that elections to the Bulgarian National Assembly were to be held on the basis of party lists respecting the autonomy of parties. In particular, section 48(5) of that Act gave the parties and coalitions full discretion in composing the lists for the election. Parties and coalitions were free to submit lists as they considered best, taking into account whatever considerations they chose. There was no right for an individual candidate to be registered or to be put on the list. The electoral authorities thus decided upon requests from parties, not upon individual motions. Such a setup is in conformity with democratic rules, including party autonomy and internal party democracy.
The initial registration of the candidates by law had to be – and in fact was – completed thirty days prior to the elections. Such a time limit is indispensable for the proper preparation of the ballot sheets for the elections.
The provision at issue made one exemption to this time limit for specific reasons, when collaboration with the former State security agencies was revealed or alleged: “Parties ... may request annulment of the registration of a person featuring on their candidate list in respect of whom information is revealed indicating that he or she collaborated...”. No individual rights of the candidates were addressed. The wording of the relevant provision did not require proof. Such an exemption may be considered necessary because incriminating material is likely to arise from outside sources, once the names of candidates become known to a wider public. On the other hand, the thirty day time limit did not allow for a final assessment of the facts with a subsequent comprehensive review by a commission or a court. The law thus gave to the parties and coalitions in explicit terms one single ground to ask for a change in their list of candidates up to seven days before the elections. According to the Central Electoral Commission, each party or coalition could freely assess the facts establishing the existence of such collaboration, and their assessment was not subject to review by the electoral authorities.
In our view, this is a logical solution and in conformity with the free democratic process. It enables the party or coalition to react to facts or suspicions which may impair the prospect of success for the whole party, including all other candidates. This provision thus enabled the party or coalition to strike out of the list someone whose reputation was discredited or whose credibility could be easily challenged, so as to uphold their chances.
To our understanding, the coalition in question and the Central Electoral Commission acted in full accordance with these principles and the provision of the law itself was never challenged. Neither the coalition nor the Central Electoral Commission can be held responsible for the correctness or the legality of the discrediting or disqualifying information which was revealed. This is a matter to be addressed by those who revealed the information and by the alleged victims of this.
What was challenged by the applicants was not the substance of the disqualification, but the form and procedure of revealing the disqualifying information (report, and not certificate) and the subsequent reaction of their own party. The applicants succeeded in the Supreme Administrative Court. We consider that this could be regarded as an unjustified interference with internal party democracy and, since it took place at the very period of elections, it interfered with the free and smooth conduct of the elections. Notwithstanding these questions which the Court does not have to address, the problem was rightly determined domestically by the Constitutional Court: the election was valid. The applicants could only claim that the State was liable in tort, which they never did.
On the basis of the above we consider that the applicants' complaint about the electoral authorities' refusal to comply with the final judgments of the Supreme Administrative Court is ill founded and not directly linked to the subject matter of the dispute.