FIFTH SECTION

CASE OF KULINSKI AND SABEV v. BULGARIA

(Application no. 63849/09)

JUDGMENT

STRASBOURG

21 July 2016

FINAL

21/10/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kulinski and Sabev v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President , Khanlar Hajiyev, Erik Møse, André Potocki, Síofra O ’ Leary, Carlo Ranzoni, judges , Pavlina Panova, ad hoc judge , and Claudia Westerdiek, Section Registrar ,

Having deliberated in private on 28 June 2016 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 63849/09) 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”) on 30 November 2009 by two Bulgarian nationals, Mr Krum Yordanov Kulinski and Mr Asen Todorov Sabev (“the applicants”), who were born in 1970 and 1977 respectively.

2 . The applicants were represented by Mr K. Kanev, from the Bulgarian Helsinki Committee. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

3 . The applicants alleged that they were prevented from voting while serving prison sentences of different lengths.

4 . On 4 June 2015 the complaints concerning the applicants ’ inability to vote while serving their prison sentences were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5 . Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court). Accordingly, the President of the Fifth Section appointed Ms Pavlina Panova to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The first applicant, Mr Kulinski, was convicted of hooliganism on 16 May 2008 in a final judgment of the Sofia City Court. He served his sentence in Sofia Prison between 6 November 2008 and 30 December 2009. Having served the entirety of his sentence, he was released on the latter date.

7 . The second applicant, Mr Sabev, was convicted of robbery and murder and sentenced to whole-life imprisonment on 17 December 2003 in a final judgment of the Supreme Court of Cassation. The applicant is serving his sentence in Sofia Prison. On 3 September 2014 the Vice ‑ President of Bulgaria, exercising the constitutional prerogative to grant clemency, commuted the applicant ’ s whole-life sentence to a “simple-life” sentence (see paragraph 1 6 below).

8 . In 2009, while both applicants were serving their sentences, the following elections took place: elections to the European Parliament on 7 June 2009 and to the Bulgarian Parliament on 5 July 2009. No polling station was set up in the prison where the applicants were detained, as the relevant legislation excluded sentenced individuals from voting.

9 . Subsequently, the second applicant was not allowed to vote in the elections to the Bulgarian Parliament on 12 May 2013 and 5 October 2014, nor in the European Parliament election on 25 May 2014.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

A. Domestic law

1. Constitution 1991

11 . According to Article 149 § 1 (1)(2) the Constitutional Court provides binding interpretation s of the Constitution and rules on the constitutionality of the laws and other acts passed by Parliament or acts passed by the President. Decisions of the Constitutional Court have effect only for the future ( ex nunc ).

2. Election of Members of the Bulgarian Parliament Act 2001 (repealed in 2011)

12 . Section 3(1) of the Act reproduced the essential content of Article 42 of the Constitution as regards the election of Members of Parliament.

3. Election of Members of the European Parliament Act 2007 (repealed in 2011, the r elevant provisions incorporated in the Election Code 2011)

13 . Bulgarian citizens who are of legal age, have continuously resided in Bulgaria or another EU State during at least the last three months, and have neither been deprived of legal capacity nor are serving a prison sentence, can vote in elections to the European Parliament (Section 4(1)) . Other European Union national s can also elect members of the European Parliament if the former are of legal age, have resided in Bulgaria or another EU member State for at least three months prior to the election, have not been deprived of their right to elec t in the State whose citizens they are and have requested in writing participation in the election (Section 4(2)). Those eligible can only vote once in every election to the European Parliament.

4 . Election Code 2011 (repealed in March 2014)

14 . Article 3 §§ 1 and 2 of this Code stipulated that Bulgarian citizens who have not been deprived of legal capacity and are not serving a prison sentence could elect members of P arliament, the President and the Vice ‑ President of the Republic of Bulgaria.

5 . Election Code 2014 (in force from March 2014)

6. Post d eath penalty abolition

16 . Since the abolition of the death penalty with effect from 27 December 1998 , the Code has provided for three types of custodial penalty: imprisonment for a fixed period of up to thirty years, simple-life imprisonment with the possibility of commutation, and whole-life imprisonment without the possibility of commutation.

7. Release on parole

17 . Under Article 70 § 1 of the Criminal Code, release on parole is only applicable to fixed-term prison sentences. Offenders sentenced to whole-life or simple-life imprisonment are not eligible for release on parole.

8. Reduction of sentences

18 . Prisoners can have their sentences reduced under Article 41 § 3 of the Criminal Code, which provides that two days of work effectively carried out counts as three days of imprisonment. When prisoners systematically avoid working or breach prison rules, the court can wholly or partially cancel the reduction of the sentence accrued during the previous two years (Article 41 § 4 of the Criminal Code).

9. Amnesty

19 . Article 84 (13) of the Constitution provides that amnesty is granted by Parliament.

10. Presidential pardon

20 . Under Article 98 (11) of the Constitution, granting a pardon is a presidential prerogative. It is a discretionary power which the President of the Republic has delegated to the Vice-President, who may decide to exercise it in any form and at any time while the sentence is being served. His or her decision is unconditional and irrevocable and is not subject to judicial or administrative review (for more detail, see Harakchiev and Tolumov v. Bulgaria , nos. 15018/11 and 61199/12 , §§ 72-107, ECHR 2014 (extracts).

11. Ombudsman ’ s prerogatives

21 . Since 1 January 2004 the Ombudsman can ask the bodies enumerated in Article 150 of the Constitution, namely the President of the Republic, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court, the Prosecutor General or at least one-fifth of the members of parliament, to apply to the Constitutional Court with a request for interpretation of the Constitution. From 2006, the Ombudsman can himself or herself ask the Constitutional Court to rule on the compatibility of ordinary laws with the Constitution (Article 150 § 3 of the Constitution) .

12. Commutation of the sentence by judicial decision

B. International and comparative law

23 . The relevant provisions on prisoners ’ voting rights, found in international legal instruments and laws of other member States of the Convention, have been summarised in the case of Anchugov and Gladkov v. Russia , nos. 11157/04 and 15162/05, §§ 36-46, 4 July 2013.

24 . To the extent that the present case concerns not only Bulgarian parliamentary elections but also the right to vote in elections to the European Parliament, the following is of relevance. T he Court of Justice of the European Union has examined, in the case of Thierry Delvigne v . Commune de Lesparre-Médoc and Préfet de la Gironde (C-650/13, EU:C:2015:648) the compatibility with Article 39 (2) of the Charter of Fundamental Rights of the European Union of the exclusion, by operation of French law, from those entitled to vote in elections to the European Parliament persons who were convicted of a serious crime. In Delvigne , the Court of Justice held that the French limitation of prisoners ’ voting rights did not call into question the essence of those rights s ince it had the effect of exclud ing certain persons, under specific conditions and on account of their conduct, from those entitled to vote in elections to the Parliament, as long as thos e conditions are fulfilled. In addition, it considered the French limitation was proportionate in so far as it takes into account the nature and the gravity of the criminal offence committed and the duration of the penalty (see Delvigne , cited above, paragraphs 48-49).

25 . A comparative law study was carried out in the context of the proceedings before the Grand Chamber of the Court in another case concerning prisoners ’ voting rights (see Scoppola v. Italy (no. 3) [GC], no. 126/05 , §§ 45-48, 22 May 2012). It showed that , at that time, seven Convention States – Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the United Kingdom – automatically deprived all convicted prisoners serving prison sentences of the right to vote, while nineteen of the forty ‑ three States examined placed no restrictions on that right and seventeen followed an intermediate approach whereby disenfranchisement of prisoners depended on the type of offence and/or the length of the custodial sentence.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION

26 . Both applicants complained under Article 3 of Protocol No. 1 to the Convention that their disenfranchisement on the ground that they were convicted prisoners violated their right to vote and, in particular, that they had been unable to vote in two elections held on different dates in 2009 (see paragraph 8 above). The second applicant complained separately that he had not been able to vote in three other elections which took place in 2013 and 2014 (see paragraph 9 above). The relevant part of Article 3 of Protocol No. 1 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.”

27 . The Government contested the applicants ’ assertions.

A. Admissibility

28 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The Government ’ s submissions

29 . The Government considered that Article 3 of Protocol No. 1 did not provide an individual right to participation in elections which was absolute and unlimited. Contracting States had a wide margin of appreciation in respect of people ’ s voting rights. The restrictions on the exercise of voting rights found in Article 42 (1) of the Bulgarian Constitution was a sovereign right of every State to impose certain restrictions on the voting rights of citizens under its jurisdiction. Article 3 of Protocol No. 1 of the Convention did not imply any other conditions relating to electoral rights, apart from the State having to guarantee the free expression of the people and not to impose arbitrary restrictions on voting. In this connection, this Convention provision did not suggest that States had to guarantee to absolutely all of their citizens the right to vote, as long as their electoral systems provided conditions for the holding of free elections in which people could freely express their will when electing the legislature. The Convention member States were therefore entitled to provide criminal conviction as a ground for disenfranchisement.

30 . The loss of voting rights was not arbitrary but connected to the commission of crimes in connection with which individuals were effectively serving a sentence of imprisonment. The disenfranchisement pursued the legitimate purpose of promoting high civic responsibility and respect for the rule of law. In Bulgaria disenfranchisement applied only in respect of individuals effectively serving sentences of imprisonment on the basis of a final judgment. This restriction did not apply in cases of suspended prison sentences, or in respect of detained suspects or those accused. The number of prisoners who could not exercise their right to vote was relatively low when compared with the general population, respectively 8,614 in January 2009 and 6,996 in July 2015; as such, it did not represent a threat to the democratic foundations of the State. Finally, the Bulgarian legal system contained a mechanism for the automatic restoration of prisoners ’ rights after their release from prison.

2. The applicants ’ submissions

31 . The applicants considered that their situation was very similar to that of the applicants in Anchugov and Gladkov , cited above, as the constitutional ban on voting applied to everyone who was serving a sentence. Their situation differed from that described in Scoppola (no. 3), cited above, where the voting ban only applied to those sentenced to more than three years of imprisonment and to those convicted of certain crimes against the State.

3. The Court ’ s assessment

(a) General principles

32 . The Court observes that the relevant general principles governing the right to vote in parliamentary elections have been summarised in the cases of Hirst v. the United Kingdom (no. 2) [GC ], no. 74025/01, §§ 63-71, ECHR 2005 - IX; Scoppola (no. 3) [GC], cited above , §§ 81-87; and Anchugov and Gladkov , cited above , §§ 93-100. The essence of these principles, reiterated in all of these three key cases, is that when disenfranchisement affects a group of people generally, automatically and indiscriminately, solely on the basis that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offences and their individual circumstances, it is not compatible with Article 3 of Protocol No. 1 (see to this effect Hirst (no. 2) [GC], cited above, § 82 ; Scoppola (no. 3) [GC], cited above, § 96; and Anchugov and Gladkov , cited above, § 100, first two sentences).

(b) Application of these principles to the present case

33 . The Court notes that the present application concerns the inability of two Bulgarian citizens to vote in legislative elections while serving prison sentences. The Court must therefore ascertain whether this was compatible with Article 3 of Protocol No. 1.

(i) Interference

34 . As regards, in the first place , whether there was an interference with the applicants ’ rights under this Convention provision , the Court observes that the applicants were deprived of the right to vote by virtue of Article 42 § 1 of the Bulgarian Constitution and by the relevant provisions of legislation on elections to the Bulgarian and European Parliaments (see paragraphs 12 and 15 above). The deprivation therefore constituted an interference with their right to vote enshrined in Article 3 of Protocol No. 1.

(ii) Legitimate aim

35 . Secondly, the Court has to consider whether the interference pursued one or more legitimate aims. The Court points out in this connection that, unlike other provisions of the Convention, Article 3 of Protocol No. 1 does not specify or limit the aims which a restriction may pursue. A wide range of purposes may therefore be compatible with this provision (see, for example, Podkolzina v. Latvia , no. 46726/99, § 34, ECHR 2002 - II , § 34). The Court accept s the Government ’ s argument that the ban on voting for convicted prisoners behind bars was aimed at promoting the rule of law and enhancing civic responsibility , both of which are legitimate aims for the purposes of Article 3 of Protocol No. 1 (see Hirst no. 2 (GC), cited above, §§ 74 and 75; Scoppola (no. 3) (GC), cited above, § 90, and Anchugov and Gladkov , cited above, § 102).

(iii) Proportionality

38 . I n respect of the Government ’ s argument that States enjoy a wide margin of appreciation in respect of people ’ s voting rights , the Court has repeatedly recognised that this margin exists but that it is not all-embracing (see Hirst (no. 2) , cited above, § 82). A general, automatic and indiscriminate restriction of the right protected under Article 3 of Protocol No. 1 must be seen as falling outside any acceptable margin of appreciation, however wide that margin may be in this field (see Hirst (no. 2) , cited above, § 82).

39 . As regards the extent of the obligation of States under Article 3 of Protocol No. 1, the Court considers it vital to emphasise the following. The formulation used in this Article to the effect that “The High Contracting Parties undertake”, as opposed to the wording whereby “Everyone has the right” or “No one shall” which is found in nearly all the other substantive clauses of the Convention, does not reflect any difference of substance between this Article and the other provisions of the Convention and its Protocols (see Mathieu-Mohin and Clerfayt v. Belgium , 2 March 1987, §§ 48-50, Series A no. 113) . The Court has repeatedly read into this Article the existence of individual subjective rights of participation – the “right to vote” and the “right to stand for election to the legislature”, as protected by the positive obligation of the State to effectively ensure those rights to individuals under its jurisdiction (see Scoppola (no. 3), cited above, § 81 ; Anchugov and Gladkov , cited above, § 93; and Brânduşe v. Romania (no. 2) , no. 39951/08, § 44, 27 October 2015) .

40 . The respondent Government argue d that the number of prisoners who could not exercise their right to vote was low (see paragraph 30 above, last sentence) with the result that the restriction did not lead to a disproportionate interference with the applicants ’ voting rights . The Court finds that, to the extent that such statistical data could be considered relevant, these figures are above all indicative of the numbers of individuals who have been deprived of the exercise of their right to vote while serving prison sentences .

41 . Finally, in respect of the argument that prisoners regained their right to vote upon their release from prison, the Court observes that this feature of the system does not in any way change the fact that, as the law and practice stood at the time of the elections in question , all convicted prisoners, regardless of their individual circumstances, their conduct and the gravity of the offences committed, were deprived of the right to vote.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL NO. 1

43 . Both applicants complained that they did not have effective domestic remedies in respect of their grieva nce under Article 3 of Protocol No. 1 to the Convention in relation to their inability to vote while serving their prison sentences. They relied on Article 13 of the Convention, which 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.”

A. The parties ’ submissions

44 . According to the Government, the applicants had several remedies at their disposal in respect of their complaint. In the first place, they could complain to the Ombudsman, who could in turn make representation to the Constitutional Court (see paragraph 2 1 above). Secondly, having served at least half of their sentence, they could apply for and obtain early release on parole if they showed by exemplary behaviour and an honest attitude towards labour that they had corrected themselves (see paragraph 1 7 above). Thirdly, the applicants could obtain a reduction of their sentence by working in prison, given that under the applicable legislation two days worked equalled three days served (see paragraph 1 8 above). The termination of the effective sentences in case of early release and reduction of sentence, albeit conditional, would have the legal effect of permitting the individuals in question to exercise their right to vote, as they would not then be serving sentences of imprisonment. Finally, release could also result from amnesty or full or partial pardon (see paragraphs 19 -2 0 above).

45 . In the Government ’ s view, the above-listed legal mechanisms for reducing a sentence constituted effective remedies which allowed for early recovery of the right to vote; this in turn demonstrated that the Bulgarian criminal justice system had a certain degree of flexibility, as required by the Convention.

46 . As regards the second applicant, the Government pointed out that simple- life imprisonment may be replaced by a sentence of imprisonment for a term of thirty years (see paragraph 2 2 above) .

47 . The applicants contested the above arguments.

B . The Court ’ s assessment

48 . The Court first notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

49 . The Court next reiterates that it has already held that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms (see Greens and M.T. v. the United Kingdom , nos. 60041/08 and 60054/08, §§ 90-92, ECHR 2010 (extracts), and Szabó and Vissy v. Hungary , no . 37138/14, § 93, 12 January 2016, and the authorities cited therein).

50 . In the present case the Court has found a violation of Article 3 of Protocol No. 1 as a result of the applicants ’ being deprived of the right to vote by virtue of Article 42 § 1 of the Bulgarian Constitution and the relevant provisions of legislation on elections to the Bulgarian and European Parliaments (see paragraphs 12 and 15 above).

51 . The Court accordingly concludes that there has been no violation of Article 13.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52 . 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. Damage

53 . Mr Kulinski claimed 2,000 euros (EUR) in respect of non-pecuniary damage, and Mr Sabev claimed EUR 5,000 in respect of non-pecuniary damage.

54 . The Government considered that both of these claims were unjustified and excessive.

55 . Having regard to the circumstances of the present case, the Court considers that the finding of a violation constitutes sufficient just satisfaction in the present case for any non-pecuniary damage sustained by the applicants (see Hirst (no. 2) [GC], cited above, §§ 93-94; Greens and M.T. v. the United Kingdom , nos. 60 041/08 and 60054/08, § 98, ECHR 2010 (extracts); and Anchugov and Gladkov , cited above, § 122).

B. Costs and expenses

56 . The applicants also claimed EUR 2,727 for the costs and expenses incurred before the Court. They asked for this amount to be paid directly into the account of the Bulgarian Helsinki Committee.

57 . The Government considered that these claims were exaggerated and unjustified.

58 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of 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.

59 . As regards the costs and expenses incurred before the Court, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2, 727 .

C. Default interest

60 . The Court considers it appropriate that the default interest rate 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, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention;

3. Holds that there has been no violation of Article 13 of the Convention;

4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary dam age sustained by the applicants;

5. Holds

(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, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 2, 727 (two thousand seven hundred and twenty seven euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of the Bulgarian Helsinki Committee ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicants ’ claim for just satisfaction.

Done in English, and notified in writing on 21 July 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Angelika Nußberger Registrar President