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.