PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA

I agreed with the majority that the examination of the regularity of the voting process by the Constitutional Court of Bulgaria constitutes an interference with the applicants ’ rights to democratic elections as guaranteed by Article 3 of Protocol no.1 to the Convention. In so far as this interference concerned a completed stage of the electoral process, in my view its necessity was justified by definition for the purposes of ensuring that the electoral process duly complied with all procedures, which are at the core of the authority voters place in elected officials. The majority did not express any doubts or concerns in this regard.

However, the very fact of “interference” with or restriction of individual rights does not in itself suffice to find that they were necessarily violated. Such a finding normally requires a further analysis of their lawfulness and proportionality to the pursued legitimate aim. In this regard I remain unconvinced that the exercise of a Constitutional Court ’ s competence and/or the rights guaranteed by Article 3 of Protocol 1 lend themselves to a similar analysis and the majority did not carry it out.

Instead, reaffirming formally the well-established principle that the requirements of Article 6 are not applicable to decisions of Constitutional courts, in §§ 153-179 the majority nonetheless deemed it appropriate to assess the manner, in which the Constitutional Court exercised its competence under the inapplicable criteria of this provision. Stopping only a step before formally declaring the impugned decision arbitrary, the scope of this analysis ranges from questioning the initial necessity to accept the request for examination of the regularity of the electoral process, through the scope of this examination and the sufficiency of its reasoning, to criticize the procedure applied by the Constitutional Court, culminate in rejection of the interpretation of the domestic law so as to finally reach an overall conclusion that this “interference amounted to a violation” of all applicants ’ rights to democratic elections.

In my understanding and in the previous jurisprudence of this Court, each and all of these issues belong exclusively to the competence of the Constitutional Court and should remain there. I find certain irony in the fact that it is in my last dissenting opinion that I am for the first time compelled to remind that the ECHR cannot substitute itself for the competent national courts if it is to remain faithful to the principle of its own subsidiary role. However, the occasion seems overwhelmingly appropriate.

Like my learned colleague judge Wojtyczek, I believe that the present case concerns neither a “flagrant malfunctioning” of the Constitutional Court in exercising its competence to ensure a lawful electoral process, nor any arbitrary or wrong conclusion reached in the case before it. In this regard I fully agree with his conclusion that “ [i]t is not just the judgment of the Constitutional Court ... but the whole electoral procedure which does not ... comply with the standards of Article 3 of Protocol No. 1” . For me the problematic aspects of the exercise of the applicants ’ rights under Article 3 of Protocol No. 1 are rooted and limited to the absence of opportunities to hold re-elections. I have no doubt that in the present case the majority would have reached different conclusions had there been an opportunity for the applicants to participate in a second round of elections so as to correct the procedural flows found by the Constitutional Court.

Article 3 of Protocol No. 1 envisages first and foremost a “ positive obligation ” of states to “ undertake to hold free elections ” so as to “ensure the free expression of the opinion of the people in the choice of the legislature” as well as the implicit in Article 3 of Protocol No. 1 subjective rights to vote and to stand for election.

I regret being unable to follow the findings of my learned colleagues in the absence of due analysis of the scope of the positive obligation to “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” and the extent, to which it was met in the present case, of appropriate distinctions in the scope and nature of the individual rights guaranteed by this provision and the different potential effect of the decision of the Constitutional Court alone or in conjunction with the absence of opportunities to hold re-elections in implementing this decision.

I have voted for finding a violation of the rights of the 101 applicants in application no 48377/10 for reasons based on a humble attempt for such a different analysis. The operative part of the decision of the Constitutional Court explicitly states that (§ 48 of the judgment) “ the votes in question had been valid under domestic legislation but that they had been deducted from the election results owing to the irregularity of the voter lists and the voting minutes” . My understanding of this decision in Convention terms is that even if valid per se , the votes were not cast “in conditions which [ensured and allowed a verification of] the free expression of the opinion of the people in the choice of the legislature” and this required the entire flown process to be disregarded. However, in the absence of opportunities for re-elections capable of correcting these flows, a restoration of the 101 applicants ’ opportunities to exercise their right to “influence” the choice of legislature was not envisaged. Thus, failing to meet the positive obligation to “undertake to hold [a new round of] free elections” in proper “conditions to ensure the free expression of the opinion of [the applicants ’ and over 18 000 other voters] choice of the legislature”, the implementation of the decision of the Constitutional Court had the ultimate and direct effect of disregarding altogether the applicants ’ rights to vote.

Article 3 of Protocol No. 1 protects also the right of Mr. Riza and the DPS party to stand as candidates in elections. However, it does not guarantee any right to win a seat in Parliament as they appear to complain. It should first of all be noted that it cannot be said that the quashing of the initially announced election of Mr. Riza and his seat as a candidate of the applicant party were the direct result of the quashed electoral process in the affected constituencies in the circumstances of a proportionate electoral system. This situation might have been different if Mr. Riza had won a seat for the applicant party in the affected constituency as a candidate in a majoritarian electoral system.

Nonetheless, in this regard the majority ’ s finding of a violation of the rights of these two applicants seems to be based on the premise that in quashing the result in favour of the two applicants, the decision of the Constitutional Court had a direct and unjustified detrimental effect on their right to stand for elections. I failed to join the majority in this finding since I fail to discern any such causal link. In contrast to the directly affected rights of the 101 applicants in application no. 48377/10 to vote, Article 3 of Protocol No. 1 does not guarantee a right to be elected and the majority failed to specify how this decision affected the right to stand for as candidates, or limited it contrary to the requirements of Article 3 of Protocol No.1. For the reasons pointed above, I fail to follow the majority ’ s conclusions on this decision and I share the opinion of judge Wojtyczek that “ “[i]t is not just the judgment of the Constitutional Court ... which does not ... comply with the standards of Article 3 of Protocol No. 1” .

While it is true that the results of the elections, which were victorious for the applicants, were quashed, this decision was based on established procedural flows and did not affect the two applicants ’ right to stand for elections on either national or local level in any manner like questioning the validity of the applicant party ’ s registration, or of Mr. Riza ’ s place on its list.

Like in the applications of the 101 voters, the focus of the scrutiny in the two applicants ’ situation should in my view fall on the effect of the implementation of the Constitutional Court ’ s decision on the right to stand as equal candidates and not on their situation as former or potential winners in the elections. While meeting the undertaking to hold free [re]-elections would have been capable of remedying the situation of the 101 voters in directly restoring their effective opportunities to vote, it is not clear whether a new round of free elections might have resulted in the re-election of Mr. Riza and the restoration of the initial number of seats of representatives of the applicant party in Parliament. The Court may not speculate on the potential outcome of re-elections in the circumstances of the inherent lottery of the proportionate electoral system like the one in the present case. The applicants do not complain that they were deprived of an opportunity to stand for elections in a second round and the extent to which their chances to win in it fall under the scope of Article 3 of Protocol No.1 is questionable.

In the present case the absence of opportunities for re-elections to correct the established flow clearly curtailed the rights of the 101 applicants-voters so as to impair their very essence and deprive them of their effectiveness. However, this is not necessarily true in regard of the rights of applicants Riza and DPS to stand for elections in a proportionate electoral system. At the end of the day Article 3 of Protocol No. 1 guarantees an individual right to stand for elections, but not necessarily to win them.

5 October 2015