Information Note on the Court’s case-law 189

October 2015

Riza and Others v. Bulgaria - 48377/10 and 48555/10

Judgment 13.10.2015 [Section IV]

Article 3 of Protocol No. 1

Stand for election

Vote

Annulment of election results in several polling stations without any possibility to hold new elections: violations

Facts – The applicants were a Bulgarian political party Dvizhenie za Prava i Svobodi (the Movement fo r rights and freedoms – “DPS”), Mr Riza, a member of that party, and 101 other Bulgarian nationals who had exercised their right to vote in polling stations in Turkey, where they were living, at the time of the Bulgarian parliamentary elections of 2009. Th e party DPS and Mr Riza had stood for election. The DPS obtained over 600,000 votes, i.e. over 14% of valid votes, giving it the position of third political party in the country. It was the clear winner in the polling stations where the 101 applicants had voted. The party thus had 38 MPs including Mr Riza.

The members of another political party challenged the lawfulness of the election of 7 DPS MPs and complained of serious breaches of electoral law in all the polling stations opened on Turkish territory. I n its judgment of 16 February 2010, after noting anomalies in electoral rolls and ballot reports, the Constitutional Court decided to annul the ballots in the 23 polling stations that had been opened in Turkey by Bulgarian diplomatic representations and to subtract all the votes obtained in those stations from the election results of each of the political parties, i.e. a total of 18,358 votes, of which 18,140 had been cast for the DPS. Among those votes were those cast by the 101 applicants. Their votes wer e not counted for the calculation of the electoral threshold of 4% and those of the 101 votes which had been in favour of the first six parties in the election were not taken into account for the allocation of seats between the parties at national level. A ccording to the new distribution of seats, the DPS lost one seat in Parliament, under the proportional representation system, to the party which had won the election, and Mr Riza was deprived of his office as MP.

Law – Article 3 of Protocol No. 1: The annu lment by the Constitutional Court of the ballot in the polling stations in question, the removal of Mr Riza from his office as MP and the loss for the DPS of one seat in Parliament attributed on a proportional basis had constituted an interference with the exercise by the 101 applicants of their active electoral right and by Mr Riza and the DPS of their passive electoral right. In particular, as regards the active right, it was not limited only to the act of choosing one’s preferred candidate in secret and placing one’s vote in the ballot box; it also involved the possibility for each voter to have an influence on the composition of the legislature, subject to compliance with the rules laid down by electoral law.

The proceedings before the Constitutional Cou rt, as provided for by the Constitution and electoral law, had the legitimate aim of ensuring compliance with electoral law and thus the lawfulness of the ballot and the election results. It was then necessary to establish whether the decision-making proce ss had been surrounded by sufficient safeguards against arbitrariness. Notwithstanding the fact that the DPS and Mr Riza had not formally been parties to the proceedings in question, they had actually taken part in them through the intermediary of the DPS’ parliamentary group, and they had thus had the possibility of submitting their arguments against the annulment of the election results in the polling stations opened in Turkey and of challenging effectively the arguments of the claimants.

As regards the f act that the Constitutional Court judgment could not be appealed against, no provision of the Convention or its Protocols obliged the Contracting States to put in place a second level of jurisdiction for electoral disputes, still less to provide for an app eal against the decisions of constitutional courts where the latter were entrusted with the examination of post-election disputes.

As to the annulment of the ballot in 22 out of the 23 polling stations in question, the decision-making process followed by t he Constitutional Court was not in conformity with the standards developed by the case-law of the European Court. In particular, the constitutional court had given purely formal grounds for annulling the election in those polling stations. Furthermore, tha t part of the decision was based on factors that were not enshrined, in a sufficiently clear and foreseeable manner, in domestic law, and it had not been shown that those factors had oriented the choice of the voters or distorted the result of the election .

The Constitutional Court had thus confined itself to noting the total or partial absence of the voting records in the archives of the competent State bodies in order to annul the results in four polling stations, without seeking to establish whether the re cords in those stations had been completed, signed and handed over in their entirety to the Bulgarian diplomatic services in Turkey by the respective local electoral boards. The Constitutional Court had therefore based that part of its decision on a factua l observation which did not show in itself that the electoral process in those four polling stations had been vitiated by any defects.

The Constitutional Court had decided to annul the elections in eighteen other polling stations on the ground that the lis ts of voters registered on the day of the election did not bear the signature of the chairman or of the secretary of the local electoral board. This had been a recurring omission concerning about 42% of all polling stations opened abroad, thus corroboratin g the finding that domestic law was not sufficiently clear on that point. This omission, which was purely technical in nature, thus did not show in itself that the election process in those eighteen polling stations was vitiated by defects to an extent tha t justified the annulment of the election results.

As regards the twenty-third and last polling station, where the results had been annulled because the number of voters was missing from the first page of the record, the mistake had most probably been made on the day of the ballot by the members of the local electoral board and could thus be regarded as an indication of electoral fraud. However, the Bulgarian Constitutional Court had not taken into account the fact that the Bulgarian electoral legislation i n force at the material time did not provide for the possibility of organising fresh elections if the ballot was annulled, in determining whether the annulment of the election results would be a proportionate measure in the light of Article 3 of Protocol N o. 1. The holding of fresh elections in that last polling station would, however, have reconciled the legitimate aim behind the annulment of the election results, namely the preservation of the legality of the electoral process, with the rights of the vote rs and the candidates standing for election.

In view of the lacunae in domestic law and the lack of any possibility of holding fresh elections, the impugned judgment, which was based on purely formal arguments, had caused an unjustified breach of the right s of the 101 applicants, and of Mr Riza and the DPS, to participate in the legislative elections as voters and candidates, respectively.

Conclusion : violation (unanimously) in respect of the voting rights of the 101 applicants; violation (six votes to one) in respect of the right of Mr Riza and the DPS to stand for election.

Article 41: finding of a violation sufficient in itself for the non-pecuniary damage sustained by the 101 applicants and Mr Riza; claims of pecuniary damage by Mr Riza and the DPS dismissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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