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PETKOV AND OTHERS v. BULGARIA - 77568/01 [2009] ECHR 885 (11 June 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/885.html
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[2009] ECHR 885
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FIFTH
SECTION
CASE OF
PETKOV AND OTHERS v. BULGARIA
(Applications
nos. 77568/01, 178/02 and 505/02)
JUDGMENT
STRASBOURG
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:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Renate
Jaeger,
Mark
Villiger,
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:
PROCEDURE
The
case originated in three applications (nos. 77568/01, 178/02 and
505/02) against the Republic of Bulgaria lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by three
Bulgarian nationals, Mr Naum Ivanov Petkov, Mr Boris Radkov
Georgiev and Mr Ventseslav Asenov Dimitrov (“the applicants”),
on 16 November, 1 October and 21 December 2001 respectively.
The
first two applicants were represented by Mr N. Teoharov, a lawyer
practising in Sofia. The third applicant acted pro se. The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Kotseva, of the Ministry of Justice.
The
applicants alleged, in particular, that they had been prevented from
running in the 2001 parliamentary elections and had not had effective
remedies in that respect.
By a decision of 4 December 2007 the Court decided to
join the applications and declared them partly admissible.
Neither
the applicants nor the Government filed further written observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant was born in 1941 and lives in Vratsa. The second
applicant was born in 1944 and lives in Montana. The third applicant
was born in 1945 and lives in Sofia.
A. Background
In
1997, several years after the fall of the communist regime, the
Bulgarian Government introduced the 1997 Access to Documents of the
Former State Security Agencies and the Former Intelligence Department
of the General Staff Act (“the Dossiers Act” – see
paragraph 47 below), providing for, inter alia, the names of
individuals who had worked for or collaborated with certain agencies
mentioned in the Act (“the former State security agencies”)
to be disclosed. This task was entrusted to a special commission
(“the Dossiers Commission”), which had to gather
information in the archives of these agencies and on the basis of
that information publish reports containing the names of the
individuals who had worked for or collaborated with them.
B. Participation in the 2001 parliamentary elections of
persons who had allegedly collaborated with the former State security
agencies
In the run up to the parliamentary elections on 17
June 2001, in response to debate concerning the participation of
individuals who had allegedly collaborated with the former State
security agencies, a clause – section 48(5) – was
included in the newly adopted 2001 Election of Members of Parliament
Act allowing parties or coalitions which had nominated such persons
to withdraw their nominations on the basis of information indicating
that they had collaborated with the former State security agencies
(see paragraph 41 below).
On 5 June 2001 the Central Electoral Commission –
the body overseeing the electoral process – decided that the
relevant information could be provided by the Dossiers Commission
either through the reports it was supposed to prepare or through
certificates issued by it. On the basis of these documents and of a
request by the party or coalition concerned, the relevant regional
electoral commission could annul the candidate's registration under
the above mentioned section 48(5). The party or coalition had to
nominate a replacement not later than seven days before the date of
the elections.
In a final judgment of 13 June 2001 the Supreme
Administrative Court, acting on an application from the Coalition for
Bulgaria, one of the groups contesting the upcoming parliamentary
elections, declared the Central Electoral Commission's decision of 5
June 2001 null and void in so far as it provided for collaboration
with the former State security agencies to be established on the
basis of certificates issued by the Dossiers Commission. It held that
the only lawful means of establishing that an individual had
collaborated were the reports to be drawn up by the Dossiers
Commission. The Dossiers Commission could issue only the documents
provided for by law. In deciding that it could also issue
certificates proving collaboration with the former State security
agencies, the Central Electoral Commission had acted ultra vires,
and its decision was therefore null and void.
C. The annulment of the applicants' registration as
candidates for Parliament and the failure to reinstate them on the
list of candidates
All
three applicants were registered as candidates in the parliamentary
elections to be held on 17 June 2001. They ran on the ticket of the
National Movement Simeon II, a coalition established in the spring of
2001. Prior to the election they were struck off the lists of
candidates on account of allegations, based on certificates issued by
the Dossiers Commission, that they had collaborated with the former
State security agencies. The decisions to strike them off the lists
were subsequently declared null and void by the Supreme
Administrative Court. However, the electoral authorities did not
restore their names to the lists, and as a result they could not run
for Parliament.
The
specific circumstances of each applicant are described below.
1. The case of Mr Petkov
Mr Petkov was nominated as a candidate for Parliament
and registered as such on 17 May 2001.
On 7 June 2001 the National Movement Simeon II,
relying on section 48(5) of the 2001 Election of Members of
Parliament Act and the Central Electoral Commission's decision of 5
June 2001 (see paragraph 9 above and paragraph 41 below), requested
the annulment of Mr Petkov's registration. It did so on the basis of
a certificate issued by the Dossiers Commission to the effect that he
had collaborated with the former State security agencies.
In a decision of 8 June 2001 the Vratsa Regional
Electoral Commission annulled Mr Petkov's registration. It relied on
the request made by the National Movement Simeon II and the
certificate issued by the Dossiers Commission.
In a decision of 13 June 2001 the Central Electoral
Commission refused to examine Mr Petkov's appeal against the Vratsa
Regional Electoral Commission's decision. It reasoned that under
section 48(5) of the 2001 Election of Members of Parliament Act, a
party or coalition could request annulment of the registration of its
candidates if information was revealed indicating that they had
collaborated with the former State security agencies. 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. The purpose of the law was to allow the
party or coalition to nominate only candidates of impeccable moral
standing. Since a candidate could withdraw his candidacy, it was
logical for a party or a coalition to be able to withdraw it as well.
Furthermore, it was not open to candidates themselves to challenge
the electoral authorities' decision in the matter.
On 17 June 2001, the day of the elections, after
unsuccessfully requesting the Central Electoral Commission to
reconsider its position, Mr Petkov lodged an application for
judicial review with the Supreme Administrative Court. In a judgment
of 21 June 2001 a three member panel of that court set aside the
Central Electoral Commission's decision and declared the Vratsa
Regional Electoral Commission's decision null and void. It found that
not only the parties and coalitions but also the candidates
themselves had standing to seek review of the electoral authorities'
decisions to strike them off the lists. It went on to hold that,
while section 23(3) of the 2001 Election of Members of
Parliament Act expressly provided for judicial review of some of the
Central Electoral Commission's decisions, this did not mean that the
decisions not expressly mentioned therein were not subject to such
review, in view of the general rule that judicial review of
administrative decisions could be limited only by statute, which was
not the case here. It further held that the Central Electoral
Commission had erred in accepting that these decisions fell within
the regional commissions' discretion. Under section 48(5) of the
above mentioned Act, the striking of a candidate off the list
had to be predicated on information to the effect that he or she had
collaborated with the former State security agencies. In the absence
of such information, striking off was precluded. The Dossiers
Act provided that the only basis for proving collaboration with the
former State security agencies was a report from the Dossiers
Commission. The certificates issued by the Commission did not
constitute such a basis, as already found by the court in its
judgment of 13 June 2001 (see paragraph 10 above). The annulment of
Mr Petkov's registration on the basis of such a certificate was
therefore null and void.
The same day Mr Petkov asked the Central Electoral
Commission to reinstate him on the list of candidates, but apparently
no action was taken.
2. The case of Mr Georgiev
Mr Georgiev was nominated as a candidate for
Parliament and registered as such on 17 May 2001.
In a decision of 8 June 2001 the Montana Regional
Electoral Commission, acting in response to a request made by the
National Movement Simeon II the previous day, annulled Mr Georgiev's
registration as a candidate. It relied on section 48(5) of the 2001
Election of Members of Parliament Act (see paragraph 41 below). In a
decision of 13 June 2001 the Central Electoral Commission refused to
examine Mr Georgiev's appeal against that decision, on the same
grounds as in the case of Mr Petkov (see paragraph 16 above).
On 15 June 2001, two days before the elections, Mr
Georgiev lodged an application for judicial review with the Supreme
Administrative Court. In a judgment of the same day a three member
panel of that court set aside the Central Electoral Commission's
decision and declared the Montana Regional Electoral Commission's
decision null and void, giving the same reasons as in the case of Mr
Petkov (see paragraph 17 above).
On 20 June 2001 Mr Georgiev asked the Montana Regional
Electoral Commission to reinstate him on the list of candidates, but
apparently no action was taken.
3. The case of Mr Dimitrov
(a) The proceedings before the electoral
authorities and the Supreme Administrative Court
Mr Dimitrov was nominated as a candidate for
Parliament and registered as such on 16 May 2001.
On 7 June 2001 the National Movement Simeon II,
relying on section 48(5) of the 2001 Election of Members of
Parliament Act (see paragraph 41 below), requested the annulment of
Mr Dimitrov's registration. It did so on the basis of a certificate
issued by the Dossiers Commission on 4 June 2001 to the effect that
he had collaborated with the former State security agencies.
In a decision of 9 June 2001 the Razgrad Regional
Electoral Commission annulled Mr Dimitrov's registration. It relied
on section 48(5) of the 2001 Election of Members of Parliament Act,
the decision of the Central Electoral Commission of 5 June 2001 (see
paragraph 9 above and paragraph 41 below) and the certificate issued
by the Dossiers Commission on 4 June 2001. In a decision of 13 June
2001 the Central Electoral Commission refused to examine Mr
Dimitrov's appeal against this decision, giving the same reasons as
in the case of Mr Petkov (see paragraph 16 above).
The same or the following day Mr Dimitrov sought
judicial review of the above decisions by the Supreme Administrative
Court. In a judgment of 15 June 2001, two days before the elections,
a three member panel of that court set aside the Central
Electoral Commission's decision and declared the Razgrad Regional
Electoral Commission's decision null and void, giving the same
reasons as in the case of Mr Petkov (see paragraph 17 above).
Mr Dimitrov asked the Razgrad Regional Electoral
Commission to restore his name to the ballot paper, which it did in a
decision of 16 June 2001, one day before the elections. However, on
the same day the Central Electoral Commission set that decision
aside, stating that the Supreme Administrative Court's judgment was
not yet final. Mr Dimitrov sought judicial review of the latter
decision, and in a judgment of 19 June 2001, two days after the
elections, the Supreme Administrative Court declared it null and
void. It found, inter alia, that the Central Electoral
Commission's opinion that the court's judgment of 15 June 2001 was
not final was erroneous. It was final and binding, as expressly
stated in section 23(3) of the 2001 Election of Members of Parliament
Act (see paragraph 45 below).
On 21 June 2001 a five member panel of the
Supreme Administrative Court rejected as inadmissible the Central
Electoral Commission's appeal on points of law against its judgment
of 15 June 2001, reiterating that the judgment was final and not
subject to appeal, as stated in section 23(3) of the 2001 Election of
Members of Parliament Act (see paragraph 45 below).
(b) The proceedings before the
Constitutional Court
On 4 July 2001 a group of fifty seven Members of
Parliament (MPs) acting on behalf of Mr Dimitrov requested the
Constitutional Court to annul the election of the person who had
replaced him on the ticket following his deregistration. The Plenary
Meeting of the Supreme Administrative Court made a similar request on
5 July 2001.
In a decision of 9 July 2001 the Constitutional Court
declared the MPs' request admissible and allowed Mr Dimitrov, among
others, to intervene in the proceedings as a third party. In a
decision of 12 July 2001 the court declared the Supreme
Administrative Court's request likewise admissible and decided to
join the proceedings in the two cases.
In a judgment of 2 October 2001 (решение
№ 17 от 2 октомври
2001 г. по к.д. № 13 от
2001 г., обн. ДВ бр.
87 от 9 октомври
2001 г.) the Constitutional Court, acting under Article
149 § 1 (7) of the 1991 Constitution (see paragraph 35 below),
rejected the request. It held that the courts were entrusted with
reviewing the decisions of the authorities, including the electoral
authorities. In a State governed by the rule of law, the final
judgments of the courts were binding on the parties to a case and had
the status of res judicata. Therefore, the judgments of the
Supreme Administrative Court setting aside and declaring null and
void decisions of the electoral commissions were binding on the
latter and had to be complied with. However, failure to comply with
the judgments could only engage the State's liability in tort and
could not render the election of the person who had replaced Mr
Dimitrov on the ticket illegal. That person's name had featured on
the ballot paper and on the list of candidates on the day of the
election, having been included at the request of the National
Movement Simeon II. The voters had used the ballot papers featuring
her name, in accordance with the wishes of the coalition which had
put her forward as a candidate.
Two judges dissented. They stated, inter alia,
that as the decision of the electoral authorities to strike Mr
Dimitrov off the list of candidates had been declared null and void,
it had never legally existed. Therefore, his name should have been
the one to feature on the ballot paper on the day of the election.
The fact that the ballot paper had in fact contained another name did
not make good the unlawful decisions of the electoral authorities and
did not render the other person's election lawful.
(c) Action under the 1988 State
Responsibility for Damage Act
In October 2004 Mr Dimitrov brought an action under
the 1988 State Responsibility for Damage Act (see paragraph 50
below). At the time of the latest information provided by Mr Dimitrov
(15 February 2008), the proceedings were still pending at first
instance before the Sofia City Court. Nine hearings had taken place
and a further one was listed for 12 November 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 1991 Constitution
Article 120 § 2 of the 1991 Constitution provides
that all natural and legal persons have the right to seek judicial
review of any administrative decision which affects them, save as
expressly provided by statute.
Article 66 of the Constitution provides that the
lawfulness of parliamentary elections may be challenged before the
Constitutional Court in a manner to be provided by a special statute.
According to paragraph 3(3) of the transitional and concluding
provisions of the Constitution, such a statute had to be adopted not
later than three years after its entry into force. Under Article 149
§ 1 (7) of the Constitution, the Constitutional Court rules on
disputes concerning the legality of the election of an MP (see also
section 12(1)(8) of the 1991 Constitutional Court Act). The only
persons or bodies who have standing to refer a matter to the
Constitutional Court are (i) a fifth of the two hundred and
forty MPs, (ii) the President, (iii) the Council of Ministers, (iv)
the Supreme Court of Cassation, (v) the Supreme Administrative Court
and (vi) the Prosecutor General (Article 150 § 1 of the
Constitution; see also section 16 of the 1991 Constitutional Court
Act). In addition, in 2006 the ombudsman was allowed to challenge
before that court statutes which in his or her view are violative of
the citizens' rights and freedoms (Article 150 § 3 of the
Constitution). Requests made by other persons, officials or bodies
are inadmissible (опр. № 6
от 2 март 1993 г. по
к.д. № 7 от 1993 г.; опр.
№ 7 от 19 октомври
1993 г. по к.д. № 20 от
1993 г.).
Article 7 of the Constitution stipulates that the
State is liable for the damage caused by the unlawful decisions or
actions of its organs and servants. In a binding interpretative
decision of 22 April 2005 (тълк.
реш. № 3 от
22 април 2005
г. по
т.гр.д. №
3/2004 г., ОСГК
на ВКС) the
Supreme Court of Cassation, confirming the courts' prior
practice, observed that this provision did not provide a direct
avenue of redress, but merely laid down a general principle whose
implementation was to be effected through a statute. As no such
statute was enacted following the Constitution's entry into force in
1991, this function is performed by the 1988 State Responsibility for
Damage Act (see paragraphs 50 and 51 below).
B. Relevant provisions of the 2001 Election of Members
of Parliament Act
The 2001 Election of Members of Parliament Act (Закон
за избиране
на народни
представители)
was adopted by the National Assembly on 9 April 2001 and entered into
force on 13 April 2001, the day of its publication in the State
Gazette.
1. General organisation of elections
The Act, as in force at the relevant time (prior to a
partial overhaul in April 2009), stipulated that elections to the
Bulgarian National Assembly were held on the basis of a party list
proportional system. Each party or coalition registered with the
competent regional electoral commission – the body overseeing
the election process in the relevant constituency – a list of
candidates for each of the multi seat constituencies into which
the country was divided (section 6(1)). Registration had to take
place not later than thirty days before election day (section 45(2)).
After the election, the Central Electoral Commission –
the body overseeing the election process in the entire country
(section 23(1)) – determined the overall number of seats for
each party or coalition on the basis of the total number of votes
cast for the respective party or coalition. The Commission did so
using the D'Hondt method, applied in accordance with rules adopted by
the Commission prior to the elections (section 107(1)). After
the elections, the Commission determined the number of seats for each
party or coalition in each of the multi seat constituencies
using the same method, taking into account the proportion of the
votes cast (section 107(3)).
The Central Electoral Commission had to announce the
number of votes cast for each party, and the allocation of seats
among the parties, coalitions and independent candidates, not later
than four days after the day of the elections (section 111(1)). It
announced the names of the elected MPs not later than seven days
following the day of the elections (section 111(2)).
2. Possibility for parties and coalitions to withdraw
candidates on account of their links with the former State security
agencies
Section 48(5), repealed in May 2002, provided:
“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.”
This provision was complemented by paragraph 6 of the
Act's transitional and concluding provisions, also repealed in May
2002, which read as follows:
“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.”
A new section 3(3), inserted in 2005 and repealed in
April 2009, provided that the Security of Information Commission –
a body overseeing the storage and use of classified information –
checked whether the candidates for Parliament had had links with,
inter alia, the former State security agencies or their
predecessor or successor entities, and made this information
available to the leadership of the political parties and coalitions
which had nominated the candidates concerned.
3. Legal challenges to the electoral authorities'
decisions
Under section 23(1)(9) (former section 23(1)(7)), the
Central Electoral Commission examines appeals against the decisions
and actions of the regional electoral commissions. It may, in
particular, review the regional commissions' decisions relating to
the registration of candidate lists (section 24(3)). It has to
rule on all appeals within three days of their being lodged, and must
deliver its decision immediately (ibid.).
Section 23(3) provides that certain decisions of the
Central Electoral Commission are subject to judicial review by the
Supreme Administrative Court. The application for judicial review has
to be lodged within three days of delivery of the decision. The court
has to rule on the application within three days of its being lodged,
by means of a final judgment.
Section 112 of the Act (whose text coincides almost
entirely with that of the provision it superseded, namely section
94(1) of the 1991 Election of Members of Parliament, Municipal
Councillors and Mayors Act) provides that candidates for Parliament,
and the central leadership of the parties and coalitions which have
taken part in the elections, may challenge the lawfulness of the
election before the Constitutional Court within fourteen days of the
announcement of the election results. They cannot apply to that court
directly; they must do so through the persons or bodies set out in
Article 150 § 1 of the 1991 Constitution (see paragraph 35
above). It seems that this provision and its precursor have, apart
from the case of Mr Dimitrov, been used only twice, when groups of
MPs acting on behalf of individual candidates or political parties
asked the Constitutional Court to annul the election of an MP. In
both cases the court acceded to their requests (реш.
№ 8 от 6 май 1993 г. к.д.
№ 5/93 г.; реш. № 1 от
8 март 1994 г.
по к.д. № 22/93 г.).
C. Relevant provisions of the Dossiers Act
The 1997 Access to Documents of the Former State
Security Agencies and the Former Intelligence Department of the
General Staff Act (“the Dossiers Act”) regulated, inter
alia, disclosure of the names of persons who had worked for or
collaborated with the communist era State security agencies.
Section 6(1) provided that the names of these persons were to be
revealed in special reports issued by the Dossiers Commission. The
reports had to be compiled on the basis of information gathered by a
sub commission dealing specifically with that issue (section
6(2)). In April 2002 the Dossiers Act was repealed and the Dossiers
Commission was abolished.
A new Act on access to and disclosure of documents and
publication of Bulgarian citizens' links with the State security
agencies and the intelligence services of the Bulgarian national army
(“Закон за
достъп и разкриване
на документите
и за обявяване
на принадлежност
на български
граждани към
държавна сигурност
и разузнавателните
служби на българската
народна армия”)
was enacted in December 2006. The Act, which is still in force,
coincides to a large extent with the previously repealed Dossiers
Act.
D. The 1997 Supreme Administrative Court Act
The 1997 Supreme Administrative Court Act, adopted in
1997 and superseded by the 2006 Code of Administrative Procedure,
regulated the procedure before that Court. Section 30(2) (now
superseded by Article 177 § 1 of the Code) stipulated that
judgments of the Supreme Administrative Court setting aside
administrative decisions or declaring them null and void were binding
on everyone.
E. The 1988 State Responsibility for Damage Act
Section 1(1) of the 1988 State Responsibility for
Damage Caused to Citizens Act (on 12 July 2006 its name was changed
to “State and Municipalities Responsibility for Damage Act”)
provides that the State is liable for damage suffered by private
persons as a result of unlawful decisions, actions or omissions by
civil servants committed in the course of or in connection with the
performance of their duties.
Section 2(2) stipulates that the State is liable for
the damage suffered by individuals on account of their being charged
with a criminal offence, if (i) they are subsequently acquitted,
(ii) the charges are dropped because the impugned act was not
committed by them or does not constitute a criminal offence, or (iii)
the proceedings against them were opened after the expiry of the
relevant limitation period or despite an amnesty.
III. RELEVANT INTERNATIONAL DOCUMENTS
A. The Code of Good Practice
in Electoral Matters
The Code of Good Practice in Electoral Matters
(Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted
by the European Commission for Democracy Through Law (“the
Venice Commission”) at its 51st and 52nd sessions (5 6
July and 18 19 October 2002) constitutes, in the Commission's
words, “the core of a code of good practice in electoral
matters”. It reads, in so far as relevant:
“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.
...
EXPLANATORY REPORT
...
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”)
This report, published in Warsaw, Poland on 31 August
2001, describes in detail the unfolding of the parliamentary
elections in Bulgaria in June 2001. It reads, in so far as relevant:
“...
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.
...
XII. RECOMMENDATIONS
...
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
According
to information available to the Court, the laws of at least seventeen
States Parties to the Convention make provision for post electoral
remedies, whether before a special court or tribunal, the ordinary
courts, or a constitutional court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE
CONVENTION
The
applicants complained of the electoral authorities' refusal to comply
with the final judgments of the Supreme Administrative Court
declaring their striking off the lists of candidates null and void,
and of their resulting inability to stand in the parliamentary
elections on 17 June 2001.
The
Court considers that this complaint falls to be examined under
Article 3 of Protocol No. 1 to the Convention (see Zdanoka v.
Latvia [GC], no. 58278/00, § 141, ECHR 2006 IV, and
Kavakçı v. Turkey, no. 71907/01, § 30, 5
April 2007). This provision reads as follows:
“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.”
Having
raised an objection of non exhaustion of domestic remedies
(which was joined to the merits – see paragraph 73 below), the
Government did not make any submissions on the merits of this
complaint.
The
applicants argued that if the electoral authorities had complied with
the final judgments against them they, the applicants, would have
been elected to Parliament. They added that the Dossiers Commission
had not issued any other certificates attesting to links with the
former secret service and had been abolished a few months after the
June 2001 elections.
The Court observes that, while this might not be
obvious from its wording, Article 3 of Protocol No. 1 enshrines the
right to stand for Parliament as an individual right (see
Mathieu Mohin and Clerfayt v. Belgium, 2 March 1987, §§
48 51, Series A no. 113, and Yumak and Sadak v. Turkey
[GC], no. 10226/03, § 109 (i), ECHR
2008 ...). This right, as, indeed, all rights guaranteed under
this provision, is crucial to establishing and maintaining the
foundations of an effective and meaningful democracy governed by the
rule of law (see Hirst v. the United Kingdom (no. 2) [GC], no.
74025/01, § 58, ECHR 2005 IX). It is subject to implied
limitations, but these must not curtail it to such an extent as to
impair its very essence and deprive it of its effectiveness. Such
limitations must also be consistent with the rule of law and be
surrounded by sufficient safeguards against arbitrariness (see Yumak
and Sadak, cited above, § 109 (ii) (v)).
In the instant case, the Court is not called upon to
decide whether or not it was contrary to Article 3 of Protocol No. 1
to allow political parties to withdraw their candidates on account of
their links with the former State security agencies (see, by contrast
and mutatis mutandis, X. v. the Netherlands, no.
6573/74, Commission decision of 19 December 1974, Decisions and
Reports (DR) 1, p. 88; X. v. Belgium, no. 8701/79, Commission
decision of 3 December 1979, DR 18, p. 250; Van Wambeke
v. Belgium, no. 16692/90, Commission decision of 12 April
1991, unreported; Zdanoka, cited above; and Ādamsons
v. Latvia, no. 3669/03, 24 June 2008). Nor is the Court
required to determine the correctness of the Supreme Administrative
Court's rulings declaring null and void the striking of the three
applicants off the lists of candidates at the request of the
coalition which had nominated them (see paragraphs 17, 21 and 26
above). The Court is not a court of appeal from the national courts
(see Cornelis v. the Netherlands (dec.), no. 994/03, ECHR
2004-V (extracts)), and it is not its function to deal with errors of
fact or law allegedly committed by them (see, among many other
authorities, García Ruiz v. Spain [GC], no. 30544/96,
§ 28, ECHR 1999 I). Its task in the present case is
confined to assessing whether the electoral authorities' failure to
give effect to the final and binding judgments of the Supreme
Administrative Court was in breach of the applicants' rights under
the above mentioned provision.
On this point, the Court observes that it has
consistently stressed the need to avoid arbitrary decisions and abuse
of power in the electoral context, especially as regards the
registration of candidates (see Podkolzina v. Latvia, no.
46726/99, § 35, ECHR 2002 II; Melnychenko v. Ukraine,
no. 17707/02, § 59, ECHR 2004 X; Krasnov and
Skuratov v. Russia, nos. 17864/04 and 21396/04, § 42,
ECHR 2007 ...; see also Lykourezos v. Greece, no.
33554/03, § 56 in fine, ECHR 2006 VIII; Kovach v.
Ukraine, no. 39424/02, § 54, ECHR 2008 ...; Sarukhanyan
v. Armenia, no. 38978/03, § 40, 27
May 2008; and Ādamsons, cited above, §§ 111 (e)
and 117 19). It has also emphasised that the procedures for
registering candidates must be characterised by procedural fairness
and legal certainty (see Zdanoka, cited above, §§
107, 108 and 115 (e), and Russian Conservative Party of
Entrepreneurs and Others v. Russia, nos. 55066/00 and 55638/00,
§§ 50 and 58 60, ECHR 2007 ...).
The Court has moreover said, albeit in contexts
differing from the present one, that the rule of law, one of the
fundamental principles of a democratic society, entails a duty on the
part of the State and the public authorities to comply with judicial
orders or decisions against them (see, among others, Hornsby v.
Greece, 19 March 1997, §§ 40 41, Reports of
Judgments and Decisions 1997 II; Iatridis v. Greece
[GC], no. 31107/96, §§ 58 62, ECHR 1999 II;
Hasan and Chaush v. Bulgaria [GC], no. 30985/96, §
87, ECHR 2000 XI; Taşkın and Others v. Turkey,
no. 46117/99, §§ 121 25, ECHR 2004 X; and
Okyay and Others v. Turkey, no. 36220/97, § 73, ECHR
2005 VII).
Finally, the Court observes that an effective system
of electoral appeals, as described in the Venice Commission's Code of
Good Practice in Electoral Matters (see paragraph 52 above), is an
important safeguard against arbitrariness in the electoral process.
Failure to abide by final decisions given in response to such appeals
undoubtedly undermines the effectiveness of such a system.
Turning to the specific circumstances of the case, the
Court observes that the electoral authorities either failed, as in
the cases of Mr Petkov and Mr Georgiev (see paragraphs 18 and 22
above), or overtly refused, as in the case of Mr Dimitrov (see
paragraph 27 above), to comply with the Supreme Administrative
Court's final and binding judgments setting aside their decisions,
and by virtue of which they were required to reinstate the three
applicants on the lists of candidates (see paragraph 31 above). Their
stance was, as noted in the OSCE's election report, probably due to
their opinion that the Supreme Administrative Court had acted outside
its jurisdiction and given erroneous rulings (see paragraph 53 in
fine above), or perhaps to their belief, promptly dispelled by
the same court, that the judgments in question were not final (see
paragraphs 27 and 28 above). However, in a democratic society abiding
by the rule of law it is not open to the authorities to cite their
disapproval of the findings made in a final judgment in order to
refuse to comply with it (see Mancheva v. Bulgaria, no.
39609/98, § 59, 30 September 2004).
By lodging applications for judicial review the
applicants sought not only the annulment of the electoral
authorities' decisions to deregister them in response to the requests
of the coalition which had nominated them, but also and above all the
erasing of the effects of those decisions. The effective protection
of the applicants' right to stand for Parliament presupposed an
obligation on the electoral authorities' part to comply with the
final judgments against them. Their failure to give effect to those
judgments was, as later acknowledged by the Constitutional Court, in
breach of Bulgarian law (see paragraph 31 above). In addition, it
deprived the procedural guarantees available to the applicants of any
useful effect and was arbitrary.
The Court does not overlook the difficulties faced by
the electoral authorities on account of the fact that two of the
judgments against them were delivered just a couple of days before
the elections, which took place on 17 June 2001, and one even after
them (see paragraphs 17, 21 and 26 above). However, it considers for
three reasons that these difficulties were largely of the
authorities' own making. First, the electoral statute which made it
possible to request the deregistration of candidates on account of
their links with the former State security agencies –
apparently a very delicate issue in Bulgarian politics – was
enacted less than two and half months before the elections (see
paragraph 37 above), at odds with the recommendations of the Council
of Europe on the stability of electoral law (see paragraph 52 above).
Second, instead of requiring such links to be checked prior to the
candidates' nomination, it allowed the parties or coalitions which
had nominated them to seek their deregistration subsequently. It thus
put in place a mechanism which was bound to engender serious
practical difficulties and lead to legal challenges which would have
to be examined under considerable time constraints. This mechanism
was aptly described in the OSCE's report as opening the “possibility
of ... eleventh hour changes to the lists[, posing] 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” (see paragraph 53 above). Third, the
practical arrangements for the application of this rule –
criticised in the OSCE's report as being quite vague (see paragraph 53
above) – were clarified by the Central Electoral Commission
just twelve days before the elections (see paragraph 9 above),
whereas this could have been done much earlier. The initial
registration of the candidates by law had to be – and in fact
was – completed thirty days prior to the elections (see
paragraphs 13, 19, 23 and 38 in fine above). Although the
Supreme Administrative Court adjudged the applicants' applications
for judicial review in record time, taking respectively just four,
one and two days, this could not make up for the fact that, for the
above mentioned reasons, the issue of the applicants'
deregistration was being reviewed so shortly before the day of the
elections, or, in Mr Petkov's case, even after that day (see
paragraphs 17, 21 and 26 above).
There has therefore been a violation of Article 3 of
Protocol No. 1 to the Convention, in that the authorities failed to
comply with the final judgments by virtue of which they were required
to reinstate the three applicants on the lists of candidates.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained under Article 13 of the Convention that they
had not had effective remedies in respect of the electoral
authorities' refusal to reinstate them on the lists of candidates.
Article
13 provides as follows:
“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.”
The
Government submitted that the applicants had not made proper use of
the available domestic remedies. They pointed out that under
Article 7 of the 1991 Constitution the State was liable for
damage caused by the unlawful decisions and actions of its organs and
servants. This liability was regulated by the 1988 State
Responsibility for Damage Act. It had been open to the applicants to
bring actions under section 2(2) of this Act and seek compensation
for the damage flowing from their inability to run for Parliament.
There was no indication that they had done so.
The
applicants replied that the Government had not given examples showing
that the 1988 State Responsibility for Damage Act could be applied in
their situation. They further argued that an action under that Act
could not provide adequate redress for the alleged violation. The
third applicant, Mr Dimitrov, additionally stressed that being an MP
meant much more than receiving a salary. It meant participating
actively in the public life of the country – something he had
done for a number of years. He described at length his involvement in
Bulgarian politics between 1990 and 2001, and added that the events
of June 2001 had tarnished his reputation and destroyed his political
career. This could not be made good by an award of damages; the only
means of redress would have been a Constitutional Court ruling in his
favour. However, that court had found against him. In any event,
ordinary citizens were not entitled to institute proceedings before
that court.
The
applicants further submitted that an action under the above mentioned
Act could not have solved the wider problems engendered by the
electoral authorities' failure to comply with final judgments against
them. These could only be made good through a judgment of this Court.
The third applicant, Mr Dimitrov, had brought an action under the Act
in October 2004, and the proceedings were still pending before the
first instance court.
In its decision on the admissibility of the
applications (see paragraph 4 above) the Court found that the
question whether or not the applicants had at their disposal
effective domestic remedies in respect of their complaint that they
could not take part in the elections was closely linked to the merits
of their complaint under Article 13 of the Convention. It therefore
decided to join the Government's objection to the merits, and will
examine it here.
According
to the Court's case law, Article 13 applies only in respect of
grievances which can be regarded as arguable in terms of the
Convention. It guarantees the availability at national level of a
remedy to enforce the substance of the Convention rights and freedoms
in whatever form they may happen to be secured in the domestic legal
order. The scope of the Contracting States' obligations under this
provision varies depending on the nature of the applicant's
complaint; the effectiveness of a remedy does not depend on the
certainty of a favourable outcome for the applicant. However, the
remedy must be effective in practice as well as in law in the sense
either of preventing the alleged violation or remedying the impugned
state of affairs, or of providing adequate redress for any violation
that has already occurred (see Russian Conservative Party of
Entrepreneurs and Others, cited above, §§ 85 and 90).
The
Court observes at the outset that the violation of Article 3 of
Protocol No. 1 consisted, as noted in paragraphs 60 and 67 above, not
in the initial striking of the applicants off the lists of
candidates, but in the electoral authorities' ensuing failure to
reinstate them on the lists despite the final judgments to that
effect. In light of its conclusion that this provision has been
breached, the Court finds that the applicants' grievances under it
were clearly arguable. It must therefore determine whether the
applicants had an effective remedy in that respect.
On
this point, the Court considers that, while compensation for the
damage flowing from unlawful actions or omissions by the authorities
can be seen as an important part of the range of redress, the remedy
relied on the by the Government – an action under the 1988
State Responsibility for Damage Act – cannot by itself be
considered effective, for the following reasons.
Firstly,
the Government pointed to section 2(2) of the Act, which is
completely irrelevant in the present context, dealing as it does with
compensation for damage occasioned by criminal proceedings conducted
unlawfully and the related deprivation of liberty (see paragraph 51
above).
Secondly,
even assuming that the Government actually intended to refer to
section 1 of the Act, which appears more pertinent (see paragraph 50
above), they have not shown – by, for instance, citing relevant
case law – that an action under this provision stood
reasonable prospects of success. It is true that in its judgment in
the case of Mr Dimitrov the Constitutional Court alluded to the
possibility of invoking the State's liability under Article 7 of
the 1991 Constitution (see paragraph 31 above). However, when the
applicant later brought an action under the 1988 State Responsibility
for Damage Act – the only means of invoking the State's
liability under that Article (see paragraph 36 above) –, the
proceedings lasted more than four years and, at the time of the
latest information provided by him, were still pending before the
first instance court (see paragraph 33 above). Excessive delays
in an action for compensation may seriously undermine its remedial
effectiveness (see Scordino v. Italy (no. 1) [GC], no.
36813/97, § 195 in fine, ECHR 2006 V,
with further references).
Thirdly,
and most importantly, such an action, even if ultimately successful,
cannot in the circumstances be considered as providing sufficient
redress in itself, because it can result solely in an award of
compensation (see paragraph 50 above and also, mutatis mutandis,
Hornsby, § 37, and Iatridis, § 47, both cited
above). In cases where – as here – the authorities,
through deliberate actions and omissions, prevent a parliamentary
candidate from running, the breach of Article 3 of Protocol No. 1
cannot be remedied exclusively through such an award. If States were
able to confine their response to such incidents to the mere payment
of compensation, without putting in place effective procedures
ensuring the proper unfolding of the democratic process, it would be
possible in some cases for the authorities to arbitrarily deprive
candidates of their electoral rights (see, by way of example,
Podkolzina; Melnychenko; and Krasnov and Skuratov,
§§ 18 34, 42 and 52 67, all cited above) and even
to rig elections. Were that to be the case, the right to stand for
Parliament, which along with the other rights guaranteed by Article 3
of Protocol No. 1 is crucial to establishing and preserving the
foundations of a meaningful democracy (see, as a recent authority,
The Georgian Labour Party v. Georgia,
no. 9103/04, § 101, 8 July 2008), would be
ineffective in practice.
Having
thus found that the violation of Article 3 of Protocol No. 1 could
not be made good through the mere payment of compensation, and noting
that as a result of the authorities' actions and the considerable
time constraints in the run up to the elections, the breach
could not be remedied prior to the elections (see paragraph 66
above), the Court concludes that the situation could be rectified
solely by means of a post election remedy. Therefore, in the
specific circumstances of the case, the requirements of Article 13
could be fulfilled only by a procedure by which the candidates could
seek vindication of their right to stand for Parliament before a body
capable of examining the effect which the alleged breach of their
electoral rights had on the unfolding and outcome of the elections.
If that body deemed the breach serious enough to have prejudiced the
outcome, it should have had the power to annul the election result,
wholly or in part. While this option should undoubtedly have been
reserved for the most serious cases, the competent authority should
have been able to resort to it if necessary.
Indeed,
Bulgarian law makes provision for post election avenues of
redress. Under Article 66 of the 1991 Constitution the Constitutional
Court may hear challenges to the lawfulness of parliamentary
elections, and under Article 149 § 1 (7) of the
Constitution it is competent to review the lawfulness of the election
of individual MPs (see paragraph 35 above). It did review the
lawfulness of the election of the person who had replaced Mr Dimitrov
on the ballot after his deregistration, but found that the breach of
Mr Dimitrov's electoral rights, while serious, did not
necessarily entail annulling her election, because it was her name
which had featured on the ballot paper on election day, in line with
the wishes of the coalition which had nominated her (see paragraphs
29 31 above). In the Court's view, especially bearing in mind
the proportional system for parliamentary elections in Bulgaria (see
paragraph 38 above), this approach was not inconsistent with Article
3 of Protocol No. 1. Once the wishes of the people have been freely
and democratically expressed, that choice should not be called into
question, except in the presence of compelling grounds for the
democratic order (see, mutatis mutandis, Lykourezos,
cited above, § 52 in fine; Paschalidis, Koutmeridis
and Zaharakis v. Greece, nos. 27863/05,
28422/05 and 28028/05, § 28 in fine, 10 April
2008; and Yumak and Sadak, cited above, § 109 (vi)).
However,
the Court is not persuaded that, in the specific circumstances of the
case, the proceedings before the Constitutional Court, which were
apparently conducted under Article 149 § 1 (7) rather then
Article 66 of the Constitution (see paragraphs 31 and 35 above), were
capable of providing adequate redress to the applicants. In
particular, it is not clear whether the scope of that court's review
allowed it to address satisfactorily the essence of their grievances,
and whether, had it found the breaches of their electoral rights
serious enough to require remedial action, it would have been able to
provide them with sufficient redress, by, for instance, ordering
repeat elections. This uncertainty seems to be a result of the lack
of clear and unambiguous provisions in this domain and of the
scarcity of rulings on such matters. The latter, in turn, stems from
the limitation on the persons and bodies who may refer a case to the
Constitutional Court (see paragraph 35 above). While section 112 of
the 2001 Elections of Members of Parliament Act states that
parliamentary candidates may challenge the elections before that
court, it stipulates that they may not do so directly, but only
through the limited category of persons or bodies who are entitled to
refer a matter to it (see paragraph 46 above). This means that
candidates – or, indeed, any other participant in the electoral
process – cannot directly compel the institution of proceedings
before that court. The fact that such proceedings have apparently
been instituted only three times, following petitions made by groups
of MPs (see paragraph 46 above), shows the inaccessibility of this
remedy in practice. According to the Court's settled case law, a
remedy can be considered effective only if the applicant is able to
initiate the procedure directly (see Sargin and Yagci v. Turkey,
nos. 14116/88 and 14117/88, Commission decision of 11 May 1989, DR
61, p. 250, at p. 279; Brozicek v. Italy, 19 December
1989, § 34, Series A no. 167; Padovani v. Italy, 26
February 1993, § 20, Series A no. 257 B, p. 19; Spadea
and Scalabrino v. Italy, 28 September 1995, § 24,
Series A no. 315 B; Immobiliare Saffi v. Italy [GC], no.
22774/93, § 42 in fine, ECHR 1999 V; Moya Alvarez
v. Spain (dec.), no. 44677/98, ECHR 1999 VIII; and Zdanoka
v. Latvia (dec.), no. 58278/00, 6 March 2003).
In
view of the foregoing, the Court concludes that the applicants did
not have at their disposal effective remedies in respect of their
complaint under Article 3 of Protocol No. 1. It therefore dismisses
the Government's objection of non exhaustion of domestic
remedies and holds that there has been a violation of Article 13 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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
All
three applicants claimed compensation in respect of the loss of
salary and benefits which they would have received between June 2001
and June 2005 in their capacity as MPs. They further claimed interest
on those amounts. The total of Mr Petkov's claim under this head was
143,839.08 Bulgarian levs (BGN), that of Mr Georgiev's claim was BGN
126,326.56 and that of Mr Dimitrov's claim was 72,477.09 euros (EUR).
Mr Petkov and Mr Georgiev additionally claimed BGN 17,292.81 and BGN
20,768.61 respectively in respect of the social security and pension
contributions which the National Assembly would have paid in its
capacity as their employer during that period.
The
Government did not comment on the applicants' claims.
The
Court is not satisfied that there exists a sufficient causal link
between the alleged loss suffered by the applicants and the
violations found (see, mutatis mutandis, Podkolzina, §
49, and Melnychenko, § 75, both cited above). It
therefore dismisses their claims under this head.
B. Non pecuniary damage
The
applicants claimed compensation in respect of the distress and
frustration experienced as a result of the unlawful failure of the
electoral authorities to reinstate them on the list of parliamentary
candidates. They further submitted that the unproven allegations of
links with the former State security agencies had damaged their
reputations. Mr Dimitrov additionally alleged that these matters had
led to a serious deterioration in his state of health. Mr Petkov and
Mr Georgiev claimed EUR 40,000 each and Mr Dimitrov claimed EUR
30,000.
The
Government did not comment on the applicants' claims.
The
Court observes that the applicants' complaint relating to the
divulging of allegedly defamatory information about their links with
the former State security agencies was declared inadmissible (see the
admissibility decision in the present case). It follows that no
compensation is due in respect of the damage, if any, which they
suffered as a result of this. On the other hand, the Court agrees
that the applicants suffered non pecuniary damage on account of
the electoral authorities' failure to abide by the final judgments in
their favour and the lack of effective remedies in that respect.
However, in the particular circumstances of the case and in view of
the nature of the breaches found, the Court considers that the
finding of a violation constitutes sufficient just satisfaction (see,
mutatis mutandis, The Georgian Labour
Party, cited above, § 155).
C. Costs and expenses
Mr
Petkov did not formulate a claim under this head. Mr Georgiev sought
the reimbursement of BGN 15,120 incurred in lawyers' and experts'
fees for the various domestic proceedings and the proceedings before
the Court. Mr Dimitrov also sought the reimbursement of EUR 7,156
incurred in such fees, and asked that EUR 5,300 of this sum be made
payable into his lawyer's bank account, and EUR 1,856 into his own
account. The applicants submitted fee agreements, time sheets and
other documents.
The
Government did not comment on the applicants' claims.
According
to the Court's settled case law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. In the present case, having regard to
the information in its possession and the above criteria, and noting
that part of the applications were declared inadmissible (see
paragraph 4 above), the Court considers it reasonable to award Mr
Georgiev EUR 2,500 and Mr Dimitrov EUR 3,000. To these amounts
is to be added any tax that may be chargeable to the applicants.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Holds by five votes to two that there has been a
violation of Article 3 of Protocol No. 1 to the Convention;
Holds by five votes to two that there has been a
violation of Article 13 of the Convention and dismisses by
five votes to two the Government's preliminary objection;
Holds by five votes to two
(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;
Dismisses unanimously the remainder of the
applicants' claims for just satisfaction.
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
Registrar President
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.
P.L.
C.W.
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.