CONCURRING OPINION OF JUDGE WOJTYCZEK

(Translation)

1. In the present case , even though I voted for finding a violation of Article 3 of Protocol No. 1 I am not quite convinced by the majority ’ s reasoning .

2. The majority organise their reasoning as follows : finding of the existence of an interference with the right protected , and then examination of whether the interference was justified . This approach raises a number of ques tions in the instant case .

First of all, finding an interference with a right presupposes a precise definition of the content of the right in question and its scope . The approach based on analys is of the interference usually compr ises three steps, namely defining t he content of the right in question and its scope ( in German, Schutzbereich ), establishing the existence of an interference ( Grundrechtseingriff ) , and verifying the legitimacy of the interference (Rechtfertigung ). However, in the present case the first step ( defining the content of the right and its scope ) is part ly absent.

Secondly , the approach described , which was developed by German case-law and s cience of fundamental rights , is very useful in the case of rights which allow restrictions . Such rights, as defined by the Convention, are prima facie rights which protect the right-holder against illegitimate interferences and whose actual content in fact depends on the extent of the restrictions which can be imposed under the Convention. The specific content of certain righ ts may make the approach described above inapplicable. That applies in particular to the case of rights which may not be restricted : for such righ ts a finding of an interference is equivalent to a finding of a violation of the right in question , without any need to consider the legitimacy of the interference .

The wording of A rticle 3 of Protocol No. 1 places more emphasis on the objective guarantees on free elections than on citizens ’ subjective rights . That provision nevertheless allows us to infer from those object ive guarantees the existence of guarantees on the individual right s to vote and to stand for parliamentary elections . However , the exact content of those subjective right s must be established in the light of the objective guarantee on free elections . Electoral rights are therefore the rights to vote in the framework of free elections and to influe nce the composition of Parliament by voting . The passive electoral right is the right to compete for a parliamentary seat in a free election . The very notion of free elections presupposes a number of elements , including , for example , equal opportunities among candidates and parties and a voting procedure which ensures that the official results of the elections accurate ly reflect the vote s cast by the voters . I t also follows from A rticle 3 that universal suffrage and the limitations on the scope ratio person ae of active and passive electoral rights can be analysed in accordance with the schema set out above ( scope , interference , justification). On the other hand, that tripartite schema does not seem suited to apprehending irregularities in the voting procedure which cast doubt on the fairness of the election .

Moreover , i t should be emphasised that electing the legislature is a long and complicated procedure which begins within the announcement of the date of the elections and ends with the final judicial decisions on any disputes concerning the outcome of the voting . The electoral procedure is not finished until the courts have decided on possible electoral disputes . The results announced by an electoral commission which are contested before a judicial body cannot be taken as the reference point f or assessing interferences with the rights secured under A rticle 3 of Protocol No. 1.

Although the majority do not begin their argument ation by defining the active electoral right , such a definition is nonetheless set out in the judgment with sufficient precision f or the assessment of the present case : the active electoral right is the right to vote and to influe nce the make-up of the legislature ( see paragraph 148). The fact that some of the votes validly cast by the voters were not counted may amount to an interference with those persons ’ exercise of the active electoral right .

Conversely , the reasoning of the judgment offers no definition of the passive electoral right, which rather undermines the conceptualisation of the interference with that right . In t he majority ’ s view , the fact that the electoral score obtained by the Movement f or Rights and Freedoms was decreased and M r Riza lost his seat following the Constitutional Court ’ s decision constituted in itself an interference with those two applic ants ’ exercise of their passive electoral rights . I t is difficult to follow this part of the ir argu ment. The judge ’ s decision to revise voting results declared by a national commission is a major element of the electoral process leading to proclamation of the final outcome of the elections . The fact that a candidate loses his mandate or that a party loses votes and seats as compared to the origin al official proclamation of the results following a decision by an electoral court does not in itself constitute an interference with the exercise of the passive electoral right. In the present case, the interference with the passive electoral rights of Mr Riza and the Movement for Rights and Freedoms did not consist of a reduction by a court of the electoral score as compared to the previously proclaimed official result but stemmed from a number of irregularities committed during the elections, which created a situation whereby the official final results d id not accurate ly reflect the reality of the polling.

3. The parliamentary elections held in Bulgaria in 2009 were assessed by the Organisation f or Security and Cooperation in Europe (Republic of Bulgaria Parliamentary Elections, 5 July 2009, OSCE/ODIHR, Limited Election Observation Mission Final Report, Warsaw 30 September 2009) and by the Council of Europe (Observation of Parliamentary E lections in Bulgaria (5 July 2009), Ad hoc Commi ttee of the Bureau of the Assembly , 16 September 2009, Doc. 12008). According to the general conclusions of those reports the elections complied with the main international standards , although a number of difficulties were noted . The OSCE report states, in particular : “ According to the law, there is no obligation to register to vote and therefore no formal electoral list for out-of-country voters is compiled. Thus, any citizen may vote at a PEC [Precinct Election Commission] abroad upon presenting a Bulgarian passport or military identification. This was perceived by some interlocutors as a possible mechanism for multiple voting. Some 57,346 individuals pre-registered at embassies and were then deleted from the domestic voter lists ”. The same report sets out the following recommendation : “(o) ut-of-country procedures should be further regulated to include safeguards against possible multiple voting ” . For its part, the Ad hoc Committee of the Bureau of the Parliamentary Assembly of the Council of Europe stated in its report that “(t)he use of absentee voting certificates (AVCs) and out-of-country voting were widely regarded as possible mechanisms for multiple voting” (§ 28).

4. The present case highlights a whole series of irregularities li nked to out-of-country voting which led to a dispute concerning the validity and the tallying of 18, 358 votes in 23 polling stations in Turkey : absence of voting minutes, missing first page of the minutes or lack of signature s on certain documents at the bottom of the list of registered voters . The majority also, quite rightly, noted a number of deficiencies in the electoral legislation in force in 2009, including the lack of clarity and precision of the Electoral Law on a number of points and the fact that the electoral court could not order the holding of new elections.

Nevertheless , the reasoning of the Court ’ s judgment is based on the idea that the irregularities in the electoral process were of a minor nature and did not justify the decision to exclude the 18, 358 ballot papers in question. The majority take the view that the Constitutional Court should have decided to count all those votes except those cast in one polling station, where fresh elections should have been organised . If we adopt this reasoning the violation of A rticle 3 of Protocol No. 1 by Bulgaria stemmed from the judgment delivered by the Constitutional Court .

I take the view that the issues under A rticle 3 of Protocol No. 1 did not begin with the judicial review of the elections but well before that stage. In the light of the OSCE and Council of Europe reports , we must be careful not to under estimate the extent of the irregularities committed during the voting and the vote tallying in the polling stations in question. Those irregularities could have had an impact on the election results . It is difficult to determine the precise number of votes actually obtained by the different competing lists in the polling stations in question, or to establish whether the 18, 358 ballot papers from those polling stations correspond to valid votes and accurate ly reflect the results of the voting . At any event, it would be safer in that case to use the expression “ballot papers” rather than “votes” .

When a political party appealed to the Bulgarian Constitutional Court , the latter felt obliged to react to the irregularities revealed . I t should be emphasised at the same time that in the context of the various imperfections in the Bulgarian Electoral Law , that court ’ s margin of manoeuvre was limited . It faced the following choice : to a ccept the validity of the ballot papers in the polling stations in question, annul the elections in those stations , or a ccept the validity of the ballot papers in some of those polling stations and annul the elections in others . None of those three solutions would seem fully satisfa ctory , and therefore the judicial review was unable to remedy the irregularities committed at previous stag es in the electoral process .

Under the conditions described above, the violation of A rticle 3 of Protocol No. 1 stemmed from the imperfections in the la w and the irregularities committed during the various phases of the electoral procedure which had not been satisfa ctorily remedie d during the judicial review of the election . It is not just the judgment of the Constitutional Court taken on its own but the whole electoral procedure which does not fully comply with the standards of A rticle 3 of Protocol No. 1 and which justifie s a finding of a violation of that provision .

5. The Venice Commission ’ s C ode of Good Conduct in Electoral Matters recommends allowing for the part ial or total annulment of an election and calling fresh elections . However, that solution also has a number of d rawbacks . A new election necessarily throws up new issues and novel campaign themes and triggers different electoral behaviour. Those differences are particularly acute where votes cast on different dates are tallied together at the national level with a view to apportioning seats among the candidate lists. Furthermore , in the event of fresh elections organised out of the country , regard must be had to other problems beyond the difficulties rightly highlighted in paragraph 178 of the judgment. The make-up of the out-of-country electorate can quickly change as voters move around . Effective mechanisms must also be introduced to prevent electors having already voted once in the national territory or outside the country, in polling stations in which the voting has not been annulled , from vot ing again .

Under those conditions, it is vital that clear and precise legislation is put in place, providing effective guarantees for the lawfulness of all stages in the electoral procedure, thus minimising the risk of the election results having to be challenged in court.