Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28858/95

by George GANCHEV

against Bulgaria

The European Commission of Human Rights sitting in private on

25 November 1996, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

F. MARTINEZ

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 September 1995

by George GANCHEV against Bulgaria and registered on 5 October 1995

under file No. 28858/95;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 29 May

1996 and the observations in reply submitted by the applicant on

25 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national born in 1939 and residing

in Sofia. He is the leader of the political party Bulgarian Business

Block (Balgarski Biznes Blok) and was, as from January 1995, a Member

of Parliament, the termination, in April 1995, of his functions as a

Member of Parliament being the object of the present application.

Particular circumstances of the case

The facts of the case as submitted by the parties may be

summarised as follows.

The applicant was born in Bulgaria and is a Bulgarian citizen as

from birth. He spent an unspecified number of years in the United

States of America and became a United States citizen by naturalisation.

In January 1991 the Sofia Regional Court (Sofiiski gradski sad)

registered the Bulgarian Business Block as a political party. The

applicant was elected its chairman. In the end of 1991 the applicant

was registered as a candidate for President of Bulgaria. At the first

round of the elections he obtained 17% of the vote and did not qualify

for the run-off.

On 12 November 1994 the applicant requested to be registered in

the Varna electoral district (Varnenski izbiratelen raion) as a

candidate for the parliamentary elections in December 1994. On the

same date he submitted a declaration stating that he met the legal

requirements for election as provided for by, inter alia, Section 65

para. 1 of the Constitution, which stipulates that only Bulgarian

citizens without a second citizenship can stand for election (see below

Relevant domestic law).

On 15 November 1994 the applicant was registered as a candidate.

Following the elections, on 27 December 1994 the Central Election

Commission (Zentralna izbiratelna komissia) declared that the applicant

was elected a Member of Parliament from the Varna electoral district.

On 12 January 1995 the applicant was sworn in as a Member of

Parliament.

On 2 March 1995 the Chief Public Prosecutor (Glaven prokuror)

seized the Constitutional Court (Konstitutsionen sad) requesting the

termination of the applicant's functions as a Member of Parliament on

the ground that the applicant had had double citizenship at the time

of his election. On 8 March 1995 the Constitutional Court accepted the

case, communicated it to the applicant, to the Parliament, and to the

parliamentary group of the Bulgarian Business Block and invited them

to submit observations.

The Court received and accepted written observations from the

applicant and his lawyer, from the parliamentary group of the Bulgarian

Business Block, from the Parliamentary Ethics Commission (Komissia po

parlamentarna etika) and from the Parliamentary Commission on Human

Rights and Religious Confessions (Komissia po pravata na choveka i

veroizpovedaniata). The Court also admitted in evidence four letters

from the United States Ambassador in Sofia.

The first letter, sent on 31 January 1995 in response to the

Chief Public Prosecutor's query, stated, insofar as relevant:

"In response to your letter of this date concerning the

citizenship of Mr. George Ganchev, I am authorised to inform you

that he is a citizen of the United States of America."

On 6 February 1995, in a second letter to the Prosecutor, the

Ambassador stated that upon the applicant's request the United States

authorities were examining the issue whether the applicant had lost his

United States citizenship by virtue of his registration as a candidate

for the December 1994 Bulgarian elections.

A third letter, dated 1 March 1995 and again addressed to the

Prosecutor, stated, insofar as relevant:

"... the United States Government has determined that [the

applicant] is not a United States citizen. An appropriate

document so stating has been issued to [the applicant]."

The fourth letter from the United States Ambassador, sent on

27 March 1995 to the Constitutional Court in response to the Court's

request for information about the date and the grounds for the

applicant's loss of citizenship, stated that each of the three previous

letters had been correct at the time it had been written.

The Court then requested the applicant to present the document

issued to him by the United States authorities and mentioned in the

Ambassador's letter of 1 March 1995. However, the applicant refused

to do so.

On 13 April 1995 the Constitutional Court delivered its judgment.

The Court found that the applicant, at the time of his registration as

a candidate and at the time of his election, had not met the pertinent

legal requirements to stand for election as provided for in Section 65

para. 1 of the Constitution. On this ground the Court terminated the

applicant's term of office as a Member of Parliament.

The Court noted that the applicant had obtained United States

citizenship by naturalisation and that this had been undisputed. The

issue to be resolved was, accordingly, whether the applicant had lost

this citizenship prior to his election as a Member of Parliament.

The applicant claimed three separate grounds why he had allegedly

ceased to be a citizen of the United States of America.

The first argument was that he had relinquished his second

citizenship in a written declaration submitted to the United States

consular office in Sofia. The applicant apparently did not state the

date of his declaration and did not submit any evidence in this

respect. The Court found that any such declaration could have been

made only after 31 January 1995 and therefore was irrelevant to the

issue whether the applicant had been eligible to stand for election in

December 1994. This was so in view of the contents of the four letters

of the United States Ambassador and also in view of the applicant's

refusal to present the document issued to him by the United States

authorities and mentioned in the Ambassador's letter of 1 March 1995.

The applicant further contended that he had lost his second

citizenship in November 1994 by the very act of registering to stand

for election in Bulgaria. Thus, Section 349 (4) of the Immigration and

Nationality Act of the United States of America stated inter alia that

"a person ... shall lose his United States nationality by voluntarily

..., with the intention of relinquishing United States nationality, ...

accepting, serving in, or performing the duties of an office, post or

employment under the government of a foreign state..."

The applicant also stated that he had lost his United States

citizenship based on the provisions of the Naturalisation Treaty,

concluded between Bulgaria and the United States of America in 1923.

Thus, under Article III of the Treaty a national of either country, who

was naturalised in the other, was to "be held to have renounced his

naturalisation" if he renewed his residence in his country of origin

without the intent to return to that in which he was naturalised.

Under the same provision "the intent not to return [might] be held to

exist when a person naturalised in one country [had] resided more than

two years in the other."

The Court dismissed these arguments stating that the applicant

could cease to be a United States citizen only if, in addition to the

existence of certain substantive legal conditions, an act to this

effect was issued by the competent United States authority under a

pertinent legal procedure. Since such an act was issued only after 31

January 1995, it followed that the applicant had been a citizen of the

United States at the time of his election as a Member of Parliament.

In a dissenting opinion Constitutional Judge Todorov stated that,

inter alia, it was doubtful whether the Court could rely on the letters

of the United States Ambassador and that loss of citizenship ex lege,

by virtue of performing certain acts, as provided for in the

Immigration and Nationality Act of the United States of America and in

the Naturalisation Treaty between Bulgaria and the United States of

America, was possible and should have been taken into account.

On an unspecified date the prosecution authorities instituted,

ex officio, preliminary investigations against the applicant on

suspicion of having contravened Section 313 of the Penal Code

(Nakazatelen Kodeks) by knowingly making a false declaration when

registering to stand for election in November 1994. On 30 May 1995 the

Varna District Prosecutor (Varnenski raionen prokuror) terminated the

proceedings as, in her view, the applicant had lost his United States

citizenship ex lege, based on the provisions of the United States

pertinent legislation and the Naturalisation Treaty between Bulgaria

and the United States of America. In any event, no wilful conduct had

been established.

Relevant Domestic Law

The pertinent provisions of the Bulgarian Constitution of 1991,

insofar as relevant, provide as follows:

Section 65

"(1) Any Bulgarian citizen who does not hold another

citizenship ... shall be eligible for election as a Member of

Parliament."

Section 72

"(1) The functions of a Member of Parliament shall be

terminated before the expiry of his term of office in cases of:

...

3. establishing his ineligibility or incompatibility;

(2) The decision for termination shall be taken, ... under

subparagraph 3, by the Constitutional Court."

Section 150

"(1) The Constitutional Court can be seized by ... the

Chief Public Prosecutor."

COMPLAINTS

The applicant complains that the Constitutional Court decided

wrongly that he had been still a United States citizen at the time of

his election as a Member of Parliament. He submits that he had lost

his United States citizenship before the elections. Moreover, the

Court was partial and the resulting termination of his term of office

as a Member of Parliament was a politically motivated action.

The applicant submits that he has lost his United States

nationality as early as in 1992, when he stood for election for

President of Bulgaria. Also, he uses his Bulgarian passport when

travelling abroad. Moreover, Constitutional Judge Todorov, a leading

Bulgarian professor in international law, was of the opinion that the

applicant had ceased to be a citizen of the United States. This

opinion was shared by another professor of international law, who had

worked at the United Nations Organization; it was supported in the

submissions to the Court made by two Parliamentary Commissions and by

the Bulgarian Business Block; and was also confirmed by the District

Prosecutor in Varna.

The applicant has asked the Commission to clear his name from the

false accusations and to help him to be reinstated in the Parliament,

to which he was elected by a democratic vote.

The applicant does not invoke any particular provision of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 September 1995 and

registered on 5 October 1995.

On 26 February 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 29 May

1996, after an extension of the time-limit fixed for that purpose. On

5 June 1996 a copy of the Government's observations was sent to the

applicant who was invited to submit, before 10 July 1996, any written

observations which he might wish to make in response. The applicant

did not reply within this time-limit and did not request its extension.

By letter of 28 August 1996 the applicant was warned about the

provision of Article 30 para. 1(a) of the Convention. On 25 September

1996 the applicant acknowledged receipt of the Secretariat's letter of

28 August 1996 and stated that he had replied on an unspecified date

to the Government's observations, his reply apparently not having been

received by the Commission. The applicant's letter of 25 September

1996 also contained his response to the Government's observations.

THE LAW

The applicant complains that the Constitutional Court decided

wrongly when examining whether he had been eligible to stand for

election as a member of Parliament. He submits that the Court was

partial and that the termination of his term of office as a Member of

Parliament was a politically motivated action.

The Commission has examined the applicant's complaints under

Article 3 of Protocol No. 1 (P1-3) to the Convention which provides 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."

The Government submit that the applicant has complied with the

requirements of Articles 26 and 27 (Art. 26, 27) of the Convention.

They also submit that the decision of the Constitutional Court in the

applicant's case is a serious breach of his rights, that it also

violates the sovereignty of the electorate who had elected him to

Parliament, and that it has damaged the prestige of his political

party.

The Government refer to the Mathieu-Mohin and Clerfayt v. Belgium

judgment of 2 March 1987 (Eur. Court HR, Series A no. 113) and to the

Commission's practice stating that the applicant's complaints fall

within the scope of Article 3 of Protocol No. 1 (P1-3) to the

Convention, as this provision covers the issue of eligibility to stand

for elections for Parliament. The Government note at the same time

that the applicant does not challenge the constitutional rule whereby

a person having double citizenship is not eligible to be elected to

Parliament. His complaints concern only the manner in which the

Constitutional Court examined the facts and the law in respect of his

double citizenship and the prejudice suffered by him as a result of the

Court's decision.

The Government submit that the decision of the Constitutional

Court is ill-founded and lacks solid argumentation, as indicated in the

dissenting opinion of Judge Todorov. Thus, while it is undisputed that

having double citizenship makes a candidate ineligible to stand for

election, it may be open to discussion, in the Government's view,

whether the office of a Member of Parliament with double citizenship

should be terminated or whether the elected person should only be

obliged to renounce his second nationality.

The Government further note that the applicant registered a

political party in Bulgaria, ran for President in 1992 and won 17 % of

the vote in the first round, and registered for elections for

Parliament in 1994. From these facts it is allegedly clear that the

applicant did not have any intention to return to the United States,

and that therefore he had lost his United States citizenship before the

1994 elections, under the provisions of the Bulgarian - U.S.

Naturalisation Treaty. The Government submit that the Constitutional

Court wrongly assessed this issue, the correct assessment having been

given in the dissenting opinion of Judge Todorov.

Moreover, the Constitutional Court wrongly dismissed the

applicant's arguments based on the provisions of the U.S. Immigration

and Nationality Act.

The applicant replies that the Government's observations prove

that the Constitutional Court acted unlawfully in his case.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (No. 10000/82, Dec. 4.7.83, D.R. 33, pp. 247, 255).

Article 3 of Protocol No. 1 (P1-3) to the Convention guarantees

the individual's right to stand for election and, once elected, to sit

as a Member of Parliament (No. 10316/83, Dec. 7.3.84, D.R. 37, p. 129,

133).

This right is not absolute. Article 3 of Protocol No. 1 (P1-3)

does not in principle preclude States from subjecting this right, in

their internal legal orders, to conditions. States have a wide margin

of appreciation in this respect, but it is for the Convention organs

to determine in the last resort whether the requirements of the

Convention have been complied with. They have to satisfy themselves

that the conditions do not curtail the rights in question to such an

extent as to impair their very essence and deprive them of their

effectiveness; that they are imposed in pursuit of a legitimate aim;

and that the means employed are not disproportionate. Also, for

purposes of Article 3 of Protocol No. 1 (P1-3), any electoral system

must be assessed in the light of the political evolution of the country

concerned; features that would be unacceptable in the context of one

system may accordingly be justified in the context of another (Eur.

Court HR, Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March

1987, Series A no. 113, pp. 23, 24, paras. 52, 54).

The Commission notes that in the present case the Government

submit that there has been a breach, on the part of Bulgaria, of

Article 3 of Protocol No. 1 (P1-3) to the Convention, and that

therefore the application is admissible.

However, the Commission recalls that an issue going to the merits

of a case, such as for example the question of applicability of a

Convention provision, has to be examined independently of the attitude

of the respondent State (Eur. Court HR, H. v. France judgment of 24

October 1989, Series A no. 162, p. 20, para. 47; cf. also No. 14365/88,

Dec. 17.5.90, unpublished; Robins v. the United Kingdom, Comm. Rep.

4.7.96. paras. 27, 28 and 38).

The assertion of the Government that the facts complained of

constituted a violation of Article 3 of Protocol No. 1 (P1-3) to the

Convention is a statement concerning the merits of the application

which cannot be relied upon by the Commission, even at the stage of

admissibility, without an independent assessment of the case.

The Commission must, therefore, undertake an examination of the

facts of the case and also of the submissions of the parties, and on

this basis establish whether the application is inadmissible on any

ground related to the merits of the case.

The Commission notes at the outset that the applicant does not

challenge the constitutional rule whereby a person having double

citizenship is not eligible to be elected to Parliament. His

submissions indicate that he is concerned only with the allegedly wrong

and partial assessment of the facts and of the law in the decision of

the Constitutional Court in his case. Furthermore, the applicant did

not object to the Government's observations where they expressed the

same understanding about the scope of his complaints.

In this situation, the Commission is only called upon to examine

whether the manner in which the Constitutional Court terminated the

applicant's functions as a Member of Parliament was arbitrary or

unreasonable, or otherwise encroached the very essence of the

applicant's right to stand for election and, once elected, to sit as

a Member of Parliament, as derived from Article 3 of Protocol No. 1

(P1-3) to the Convention.

In this respect the Commission notes that the Constitutional

Court in the applicant's case acted under its constitutional competence

to examine the eligibility of a Member of Parliament. The Court was

seized by the Chief Public Prosecutor, as provided for under Section

150 of the Constitution.

The Commission further notes that the Court invited and accepted

written memorials from the applicant and his lawyer, from several

institutions and from a political party. The Court examined all

evidence in the case and gave a detailed reasoning, addressing the

relevant arguments of the applicant.

In its findings, the Court relied inter alia on letters from the

U.S. Ambassador in Sofia, which indicated that on 31 January 1995, a

month and a half after the elections, the applicant was still a citizen

of the United States. Based on the principles of international law,

it was not arbitrary to accept that the authorities of the State

concerned, the United States of America, were competent to certify

whether the applicant did or did not have this State's nationality.

Furthermore, the Constitutional Court noted that the applicant refused

to submit a copy of the certificate which allegedly proved that he had

relinquished his United States citizenship. In this respect it does

not appear unreasonable to conclude that, if the applicant had lost his

U.S. citizenship, this must have happened after 31 January 1995 and,

hence, after the elections.

As regards the submissions of the parties related to the

allegedly wrong interpretation of the law of the United States and of

the evidence in the case, the Commission finds that it cannot, as urged

in the present case, embark on a revision of the impugned judgment,

substitute its own assessment of the facts and of the law for that of

the Constitutional Court, or state whether dissenting Judge Todorov or

the majority decided correctly.

Lastly, the argument was advanced that, even if the applicant had

had double nationality at the time of the elections, the Constitutional

Court should not have terminated his functions of deputy, but should

have obliged him to relinquish his second citizenship. However, the

Commission notes that only the Government, and not the applicant, have

raised this issue before the Commission. Moreover, it has not been

shown that the applicant has raised it before the Constitutional Court.

The Commission does not consider, therefore, that the

Constitutional Court decided arbitrarily or that it acted in a manner

which was otherwise incompatible with the essence of the applicant's

right to be elected and to sit as a Member of Parliament, as protected

under Article 3 of Protocol No. 1 (P1-3) to the Convention.

The applicant also contends that the Constitutional Court was

partial and that he was a victim of a political plot. Examining this

allegation under Article 3 of Protocol No. 1 (P1-3) taken alone or in

conjunction with Articles 14 or 18 (P1-3+14, P1-3+18) of the

Convention, the Commission notes that the applicant's sole argument was

that the Court decided wrongly and arbitrarily. However, the

Commission has already dealt with this assertion.

The Commission further finds that the applicant's complaint of

the alleged partiality of the Constitutional Court, apart from its

pertinence under Article 3 of Protocol No. 1 (P1-3) to the Convention,

does not fall to be examined under any other provision. The Commission

notes inter alia that the Convention does not provide for procedural

guarantees, as such, in proceedings determining the eligibility for

Parliament (cf., mutatis mutandis, No. 15344/89, Dec. 14.12.89, D.R. 64

p. 210).

The Commission finds, therefore, that the application is

manifestly ill-founded and has to be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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GANCHEV v. BULGARIA

GANCHEV v. BULGARIA