PETKOV and OTHERS v. BULGARIA

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 77568/01
by Naum Ivanov PETKOV
against Bulgaria
lodged on 16 November 2001

Application no. 178/02
by Boris Radkov GEORGIEV
against Bulgaria
lodged on 1 October 2001

Application no. 505/02
by Ventseslav Asenov DIMITROV
against Bulgaria
lodged on 21 December 2001

The European Court of Human Rights (Fifth Section), sitting on 4 December 2007 as a Chamber composed of:

MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above applications lodged on 16 November 2001, 1 October 2001 and 21 December 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant in the first application (no. 77568/01), Mr Naum Ivanov Petkov, was born in 1941 and lives in Vratsa. The applicant in the second application (no. 178/02), Mr Boris Radkov Georgiev, was born in 1944 and lives in Montana. The applicant in the third application (no. 505/02), Mr Ventseslav Asenov Dimitrov, was born in 1945 and lives in Sofia. All applicants are Bulgarian nationals.

The applicants in the first two applications are represented before the Court by Mr N. Teoharov, a lawyer practising in Sofia. The third applicant is acting pro se. The Bulgarian Government (“the Government”) are represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background

In 1997, several years after the communist regime had fallen, the Bulgarian Government caused the Access to the Documents of the Former State Security and the Former Intelligence Department of the General Staff Act of 1997 (“the Dossiers Act” – see below, Relevant domestic law and practice) to be passed, which provided for, inter alia, the revealing of the names of the persons who had worked for or collaborated with certain agencies mentioned in the Act (“the former State Security”). This task was entrusted to a special commission (“the Dossiers Commission”), which had to gather information in the archives of these agencies and on its basis to publish reports containing the names of the persons who had worked for or cooperated with them.

2. The 2001 parliamentary elections and the issue of the participation in them of persons who had allegedly collaborated with the former State Security

In the run‑up to the parliamentary elections on 17 June 2001, in reaction to debates about the participation in them of persons who had allegedly collaborated with the former State Security, a clause – section 48(5) – was included in the newly adopted Election of Members of Parliament Act of 2001, providing that parties or coalitions who had nominated such persons could withdraw their nominations on the basis of information that they had collaborated with the former State Security (see below, Relevant domestic law and practice).

On 5 June 2001 the Central Electoral Commission – the body overseeing the electoral process – decided that such information could be provided by the Dossiers Commission either through the reports it was supposed to prepare, or through certificates issued by it. On the basis of these documents and a request by the party or coalition the respective regional electoral commission could annul the candidate’s registration under the above‑mentioned section 48(5). The party or coalition had to nominate a replacement not later than seven days before the date of the elections.

In a final judgment of 13 June 2001 the Supreme Administrative Court, acting on the application of the Coalition for Bulgaria, one of the contestants in the upcoming parliamentary elections, declared the Central Electoral Commission’s decision of 5 June 2001 null and void, in so far as it provided for establishing collaboration with the former State Security through certificates issued by the Dossiers Commission. It held that the only lawful means of establishing that an individual had so collaborated were the reports to be drawn up by the Dossiers Commission. The Dossiers Commission could only issue the documents provided for by law. In deciding that it could also issue certificates proving collaboration with the former State Security, the Central Electoral Commission had acted ultra vires, and for this reason its decision was null and void.

3. The annulment of the applicants’ registrations as candidates for Members of Parliament and the failure to restore them to the lists of candidates

All three applicants were registered as candidates in the parliamentary elections to be held on 17 June 2001. They ran on the ballot of the National Movement Simeon II, a coalition established in the spring of 2001. Prior to the election they were struck out of the lists of candidates on account of allegations, based on certificates issued by the Dossiers Commission, that they had collaborated with the former State Security. The decisions to strike them out of the lists were subsequently declared null and void by the Supreme Administrative Court. However, the electoral administration did not restore them to the lists, and as a result they could not run for Parliament.

The specific circumstances of each applicant are described below.

(a) The case of Mr Petkov

Mr Petkov was nominated as a candidate for Member of Parliament and registered as such on 17 May 2001.

On 7 June 2001 the National Movement Simeon II requested the annulment of Mr Petkov’s registration, relying on section 48(5) of the Election of Members of Parliament Act of 2001 and the Central Electoral Commission’s decision of 5 June 2001 (see above). It did so on the basis of information, contained in a certificate issued by the Dossiers Commission, to the effect that Mr Petkov had cooperated with the former State Security.

In a decision of 8 June 1001 the Vratsa Regional Electoral Commission annulled Mr Petkov’s registration as a candidate. It relied on the request of the National Movement Simeon II and the certificate issued by the Dossiers Commission.

In a decision of 13 June 2001 the Central Electoral Commission refused to examine Mr Petkov’s appeal against the Vratsa Regional Electoral Commission’s decision, reasoning that, by section 48(5) of the Election of Members of Parliament Act of 2001, a party or a coalition could request the annulment of the registration of one or more of its candidates if information was revealed that he or she had cooperated with the former State Security. Each party or coalition could freely assess the facts establishing such cooperation and its assessment was not subject to review by the regional electoral commission. The law’s aim was to allow the party or the coalition to propose only candidates having impeccable morals. If a candidate had the right to retract his candidacy prior to the election, it was logical for a party or a coalition to be able to likewise withdraw it. Furthermore, there was no possibility for the candidate him or herself to appeal against the regional electoral commission’s decision on this matter.

On 17 June 2001, after having made an unsuccessful attempt to urge the Central Electoral Commission to reconsider its position, Mr Petkov lodged an application for judicial review with the Supreme Administrative Court. In a judgment of 21 June 2001 a three‑member panel of that court annulled the Central Electoral Commission’s decision and declared the Vratsa Regional Electoral Commission’s decision null and void. It held that the candidates themselves, such as Mr Petkov, and not only the parties and the coalitions, had standing to seek review of the regional electoral commissions’ decisions to strike them out of the lists. It went on to state that, while section 23(3) of the Election of Members of Parliament Act of 2001 expressly provided for judicial review of some of the Central Electoral Commission’s decisions, that did not mean that the ones not mentioned there were not subject to such review, in view of the general rule that judicial review of administrative decisions could be limited only by statute, which was not the case. It further held that the Central Electoral Commission had erred in accepting that these decisions were within the regional electoral commissions’ discretionary powers. By section 48(5) of the Election of Members of Parliament Act of 2001, the striking of a candidate out of the list had to be predicated upon information of cooperation with the former State Security. The lack of such information about an already registered candidate precluded the possibility of striking him or her out of the list. The Dossiers Act provided that the only means of establishing cooperation with the former State Security was a report of the Dossiers Commission. The certificates issued by this Commission did not constitute such a means, as already found by the court in the judgment of 13 June 2001, delivered pursuant to the application of Coalition for Bulgaria (see above). Therefore, the annulment of Mr Petkov’s registration on the basis of such a certificate was null and void.

The same day Mr Petkov requested the Central Electoral Commission to restore him to the list of candidates, but apparently nothing ensued.

(b) The case of Mr Georgiev

Mr Georgiev was nominated as a candidate for Member of Parliament and registered as such on 17 May 2001.

In a decision of 8 June 2001 the Montana Regional Electoral Commission, acting pursuant to a request made by the National Movement Simeon II the previous day, annulled Mr Georgiev’s registration as a candidate. It relied on section 48(5) of the Election of Members of Parliament Act of 2001. In a decision of 13 June 2001 the Central Electoral Commission refused to examine Mr Georgiev’s appeal against that decision, on the same grounds as it did in the case of Mr Petkov (see above).

On 15 June 2001 Mr Georgiev lodged an application for judicial review with the Supreme Administrative Court. In a judgment of the same day a three‑member panel of that court annulled the Central Electoral Commission’s decision and declared the Montana Regional Electoral Commission’s decision null and void, with the same reasoning as the one in the case of Mr Petkov (see above).

On 20 June 2001 Mr Georgiev requested the Montana Regional Electoral Commission to restore him to the list of candidates, but apparently nothing ensued.

(c) The case of Mr Dimitrov

(i) The proceedings before the election administration and the Supreme Administrative Court

Mr Dimitrov was nominated as a candidate for Member of Parliament and registered as such on 16 May 2001.

On 7 June 2001 the National Movement Simeon II requested the annulment of Mr Dimitrov’s registration, relying on section 48(5) of the Election of Members of Parliament Act of 2001. It did so on the basis of information, contained in a certificate issued by the Dossiers Commission on 4 June 2001, to the effect that Mr Dimitrov had collaborated with the former State Security.

In a decision of 9 June 2001 the Razgrad Regional Electoral Commission annulled Mr Dimitrov’s registration as a candidate. It relied on section 48(5) of the Election of Members of Parliament Act of 2001, the decision of the Central Electoral Commission of 5 June 2001 (see above), and the certificate issued by the Dossiers Commission on 4 June 2001. In a decision of 13 June 2001 the Central Electoral Commission refused to examine Mr Dimitrov’s appeal against this decision on the same basis as it did in the case of Mr Petkov (see above).

The same or the following day Mr Dimitrov sought judicial review of the above decisions by the Supreme Administrative Court. In a judgment of 15 June 2001 a three‑member panel of the Supreme Administrative Court annulled the Central Electoral Commission’s decision and declared the Razgrad Regional Electoral Commission’s decision null and void, with the same reasoning as the one in the case of Mr Petkov (see above).

Mr Dimitrov requested the Razgrad Regional Electoral Commission to restore him to the ballot, which it did, in a decision of 16 June 2001. However, on the same day the Central Electoral Commission quashed that decision, stating that the Supreme Administrative Court’s judgment was not yet final. Mr Dimitrov sought judicial review of this latter decision and in a judgment of 19 June 2001 the Supreme Administrative Court declared it null and void. The court held, inter alia, that the Central Electoral Commission’s opinion that its judgment of 15 June 2001 was not final was erroneous. It was final and binding, as expressly provided by section 23(3) of the Election of Members of Parliament Act of 2001.

On 21 June 2001 a five‑member panel of the Supreme Administrative Court rejected as inadmissible the Central Electoral Commission’s appeal on points of law against its judgment of 15 June 2001, reiterating that the latter was final and not subject to appeal, as provided by section 23(3) of the Election of Members of Parliament Act of 2001.

(ii) The proceedings before the Constitutional Court

On 4 July 2001 a group of fifty-seven Members of Parliament requested the Constitutional Court to annul the election of the person who had replaced Mr Dimitrov on the ballot following his striking out of the list of candidates. So did the Plenary Meeting of the Supreme Administrative Court on 5 July 2001.

In a decision of 9 July 2001 the Constitutional Court declared the MPs’ request admissible and allowed, inter alia, Mr Dimitrov to join the proceedings as an interested third party. In a decision of 12 July 2001 the court declared the Supreme Administrative Court’s request likewise admissible and decided to join the proceedings in the two cases.

In a judgment of 2 October 2001 (решение № 17 от 2 октомври 2001 г. по к.д. № 13 от 2001 г., обн. ДВ бр. 87 от 9 октомври 2001 г.) the Constitutional Court rejected the request. It held that the courts were entrusted with reviewing the decisions of the administration, including the electoral one. In a State governed by the rule of law, the final judgments of the courts were binding on the parties to a case and had res judicata. Therefore, the judgments of the Supreme Administrative Court annulling and declaring null and void decisions of the electoral commissions were binding on them and had to be complied with. However, the failure to comply with these judgments could only engage the State’s liability in tort, but could not result in the illegality of the election of the person who had replaced Mr Dimitrov on the ballot. She had featured on the ballot and on the list of candidates on the day of the election, having been included there pursuant to the request of the National Movement Simeon II. The voters had used the ballot with her name, according to the will of the coalition which had put her candidacy forward.

Two judges dissented. They said, inter alia, that, as the decision of the electoral administration to strike Mr Dimitrov out of the list of candidates had been declared null and void, it had never legally existed. Therefore, he had to be the one featuring on the ballot on the day of the election. The fact that the ballot had de facto contained another name could not legalise the unlawful decisions of the electoral administration and the other person’s election.

B. Relevant domestic law and practice

1. The Constitution of 1991

Article 120 § 2 of the Constitution provides that all natural and legal persons have the right to seek judicial review of any administrative decision which affects them, save as expressly specified by statute.

Under Article 149 § 1 (7) of the Constitution, the Constitutional Court rules on disputes concerning the legality of the election of a Member of Parliament (see also section 12(1)(8) of the Constitutional Court Act of 1991). The only persons or bodies who have standing to refer the matter to the Constitutional Court are (i) a fifth of the two hundred and forty Members of Parliament, (ii) the President, (iii) the Council of Ministers, (iv) the Supreme Court of Cassation, (v) the Supreme Administrative Court and (vi) the Prosecutor‑General (Article 150 § 1 of the Constitution; see also section 16 of the Constitutional Court Act of 1991). The court declares requests made by other persons, officials or bodies inadmissible (опр. № 6 от 2 март 1993 г. по к.д. № 7 от 1993 г.; опр. № 7 от 19 октомври 1993 г. по к.д. № 20 от 1993 г.). It seems that save in the case of Mr Dimitrov, the Constitutional Court has not had occasion to exercise its powers under Article 149 § 1 (7) of the Constitution.

Article 7 of the Constitution stipulates that the State is liable for the damage caused by the unlawful decisions or actions of its organs and servants. In a binding interpretative decision of 22 April 2005 (тълк. реш. № 3 от 22 април 2005 г. по т.гр.д. № 3/2004 г., ОСГК на ВКС) the Supreme Court of Cassation, confirming the courts’ hitherto practice, held that this provision did not supply a direct remedy, but simply set out a principle whose implementation was to be effected through a statute. As no such statute had been adopted after the Constitution’s entry into force in 1991, this function was being served by the State Responsibility for Damage Act of 1988 (see below).

2. Relevant provisions of the Election of Members of Parliament Act of 2001

The Election of Members of Parliament Act of 2001 was adopted on 9 April 2001 and entered into force on 13 April 2001.

(a) General organisation of the elections

The Act stipulates that the elections for the Bulgarian National Assembly are held on the basis of a party‑list proportional system. Each party or coalition registers with the competent regional electoral commission – the body overseeing the election process in the respective constituency – a list of candidates for each of the multi‑mandate constituencies in which the country is divided (section 6(1)). The registration must take place not later than thirty days before the election day (section 45(2)).

After the election, the Central Electoral Commission – the body overseeing the election process in the country – determines the overall number of mandates for each party or coalition on the basis of the sum total of votes cast for the respective party or coalition. The Commission does so pursuant to the method of D’Hondt, applied in accordance with rules adopted by it prior to the election (section 107(1)). The Commission then determines the number of mandates for each party or coalition in each of the multi‑mandate constituencies on the basis of the same method, taking into account the proportion of the votes cast (section 107(3)).

The Central Electoral Commission announces the number of votes cast for each party and the allocation of mandates among the parties, coalitions and independent candidates not later than four days following the day of the elections (section 111(1)). It announces the names of the elected Members of Parliament not later than seven days following the day of the elections (section 111(2)).

(b) Possibility for parties or coalitions to withdraw candidates by reason of their affiliation with the former State Security

Section 48(5) of the Act, repealed in May 2002, provided:

“Parties and coalitions may request the annulment of the registration of a person featuring on their candidates’ list, in respect of whom information is revealed that he or she has collaborated with the former State Security. In such a case the parties and the coalitions may propose a new candidate not later than seven days before the election date.”

This provision was complemented by paragraph 6 of the transitional and concluding provisions of the Act, also repealed in May 2002, which read as follows:

“Before registering lists of candidates with the regional electoral commissions, the central leaderships of political parties and coalitions may request [the Dossiers Commission] to check the individuals who have assented to being nominated as candidates for Members of Parliament on their ballots. The verification has to take place no later than seven days after the request.”

At present new section 3(3) of the Act, inserted in 2005, provides that the Security of Information Commission – a body overseeing the storage and use of classified information – checks whether the candidates for Members of Parliament have had an affiliation with, inter alia, the former State Security or its predecessor or successor entities, and makes this information available to the leaderships of the political parties and coalitions who have nominated these candidates.

(c) Appeals and judicial review of the decisions of the electoral administration

By section 23(1)(7) (presently section 23(1)(8)), the Central Electoral Commission examines appeals against the decisions and actions of the regional electoral commissions. It may in particular review the regional commissions’ decisions relating to the registration of candidates’ lists (section 24(3) of the Act). It has to rule on all appeals within three days of their filing, and deliver its decision immediately (ibid.).

Section 23(3) provides that certain decisions of the Central Electoral Commission are subject to judicial review by the Supreme Administrative Court. The application for judicial review has to be filed within three days of their delivery. The court has to rule on the application within three days of its filing by means of a final judgment.

Section 112 of the Act (whose text corresponds almost verbatim to the wording of the provision it replaced, section 94(1) of the Election of Members of Parliament, Municipal Councillors and Mayors Act of 1991) says that the candidates for Members of Parliament and the central leaderships of the parties and the coalitions which have participated in the elections may challenge the lawfulness of the elections before the Constitutional Court. However, they cannot refer the matter directly to that court, but have to act through the organs specified in Article 150 § 1 of the Constitution (see above). The time-limit for lodging a challenge is fourteen days after the announcement of the election results by the Central Electoral Commission (see also section 17(4) of the Constitutional Court Act of 1991). If the Constitutional Court accedes to the challenge, it sends a copy of its decision to the National Assembly, the Central Electoral Commission and all other interested authorities and persons (section 22(5) of the Constitutional Court Act of 1991).

3. Relevant provisions of the Access to the Documents of the Former State Security and the Former Intelligence Department of the General Staff Act of 1997 (“the Dossiers Act”)

This Act, adopted in 1997, regulated, inter alia, the revealing of the names of the persons who had worked for or co‑operated with the communist‑era State Security. Its section 6(1) provided that the names of these persons were to be revealed in special reports issued by the Dossiers Commission. These reports had to be compiled on the basis of information gathered by a sub‑commission dealing specifically with that issue (section 6(2)). In April 2002 the Dossiers Act was repealed and the Dossiers Commission was closed down.

A new Access to and Disclosure of the Documents and Announcement of Affiliation of Bulgarian Citizens with the State Security and the Intelligence Services of the Bulgarian National Act (“Закон за достъп и разкриване на документите и за обявяване на принадлежност на български граждани към държавна сигурност и разузнавателните служби на българската народна армия”) was enacted in December 2006. That Act, presently still in force, to a large extent coincides with the previously repealed Dossiers Act.

4. The Supreme Administrative Court Act of 1997

The Supreme Administrative Court Act of 1997, adopted in 1997 and superseded by the Administrative Procedure Code of 2006, regulated the procedure before that Court. Its section 30(2) (presently superseded by Article 177 § 1 of the Code) stipulated that that court’s judgments annulling administrative decisions or declaring them null and void were binding on everyone.

5. The State Responsibility for Damage Act of 1988

Section 1(1) of the State Responsibility for Damage Caused to Citizens Act of 1988 (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act”) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. Section 1(2) of the Act provides that compensation for damage flowing from unlawful administrative decisions may be claimed after the decisions concerned have been annulled in prior proceedings. The court examining the claim for compensation cannot inquire into the validity of a voidable decision; it may merely examine whether a decision is null and void.

Section 2(2) of the Act stipulates that the State is liable for the damage suffered by individuals by reason their unlawful accusation of a criminal offence, it they are subsequently acquitted, or if the criminal proceedings are discontinued because the impugned act has not been committed by them or does not amount to a criminal offence, or if the criminal proceedings have been opened after the expiry of the relevant limitation period or despite an amnesty.

C. Relevant international documents

1. The Code of Good Practice in Electoral Matters

The Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“Venice Commission”) at its 51st and 52nd sessions (5‑6 July and 18‑19 October 2002) constitutes, in the words of the Commission “the core of a code of good practice in electoral matters”. It reads, in so far as relevant:

“GUIDELINES ON ELECTIONS

...

3.3. An effective system of appeal

a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible.

...

d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections.

e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned.

f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections.

...

EXPLANATORY REPORT

...

92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.

93. There are two possible solutions:

– appeals may be heard by the ordinary courts, a special court or the constitutional court;

– appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experience with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second.

94. Appeal to parliament, as the judge of its own election, is sometimes provided for but could result in political decisions. It is acceptable as a first instance in places where it is long established, but a judicial appeal should then be possible.

95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time‑limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time‑limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time‑limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.

96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.

97. It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission, or where the powers of different courts – e.g. the ordinary courts and the constitutional court – are not clearly differentiated.

...

98. Disputes relating to the electoral registers, which are the responsibility, for example, of the local administration operating under the supervision of or in co‑operation with the electoral commissions, can be dealt with by courts of first instance.

99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections.

100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded.

101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated.

102. Where higher‑level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.”

2. Final report on the parliamentary elections in Bulgaria by the Office for Democratic Institutions and Human Rights of the Organization for Security and Co‑operation in Europe

This report, published in Warsaw, Poland, on 31 August 2001, describes in detail the unfolding of the parliamentary elections in Bulgaria in June 2001. It reads, as relevant:

“...

IV. LEGISLATIVE FRAMEWORK

...

...some aspects of the current [Election of Members of Parliament Act of 2001] are of concern. While some of these stem from the previous law, others pertain to newly introduced provisions.

1. Under [section 48(5)], candidate lists may be changed ... if “data” is discovered indicating that they collaborated with the former State security agencies. Parties and coalitions may make these changes up to seven days before election day. The possibility of such eleventh-hour changes to the lists posed problems not only for election administrators and courts, but also for parties and voters whose understanding of candidates running in the elections was undoubtedly affected.

2. The newly adopted [section 48(5)] provides that parties and coalitions may withdraw candidates in case “data” on the candidates is found in the files of the Commission on the Documents of the Former State Security Service. A clear definition of the term “data” is needed to provide guidance. There is a particular need to define clearly whether these data constitute full evidence for collaboration with the former State security services. The current legal provisions in the Election Law as well as in the Law on Access to the Documents of the Former State Security Service led to controversial withdrawals of candidates and a number of court cases.

...

Parties and coalitions may withdraw nominated candidates and nominate substitutes up to 30 days before the elections without having to abide by additional legal requirements. After that deadline, parties may withdraw a candidate from the ticket only if he or she is “permanently incapable to run in the elections” or if “data” exists that the candidate had collaborated with the former State security agencies. In these cases, parties may nominate a new candidate up to seven days before election day.

...

C. COMPLAINTS AND APPEALS

...

A particular, extended controversy related to changes to the candidate lists. Under the [Election of Members of Parliament Act of 2001], candidate lists may be changed if “data” is discovered indicating that candidates collaborated with the former State security agencies. In this case, parties and coalitions can request the [Regional Electoral Commissions] to withdraw a name from their candidate lists. Accordingly, the [Regional Electoral Commissions] withdrew several candidates from various lists, eight of whom appealed the [Regional Electoral Commissions] decisions to the [Central Electoral Commission]. The [Central Electoral Commission] rejected the appeals, arguing that parties and coalitions have the exclusive right to evaluate the available data on collaboration with the State security agencies and to withdraw candidates. Furthermore, the [Central Electoral Commission] argued that candidates do not have the right to appeal the [Regional Electoral Commissions] decisions taken in accordance to [section 48(5)] of the [Election of Members of Parliament Act of 2001], since this article does not establish the right of appeal for a candidate whose registration is annulled upon request of his/her party or coalition based on the existence of the above mentioned data on collaboration with the former State security agencies.

Some candidates appealed to the Supreme Administrative Court, which reversed the [Central Electoral Commission] decision two days before the election and reinstated these candidates on their original lists. The Supreme Administrative Court recognized the right of candidates to appeal their withdrawals, stating that they have a legal interest because their personal rights as candidates are affected by such measures. Furthermore, the Supreme Administrative Court argued that in such cases, [Regional Electoral Commissions] are obligated to examine the available data on collaboration with the former State security agencies and decide accordingly. However, the [Central Electoral Commission] instructed the respective [Regional Electoral Commissions] not to amend the candidate lists in question, stating that the decision of the Supreme Administrative Court was not in force, as it could be appealed within the next 14 days.

Following this [Central Electoral Commission] instruction, the candidates appealed to the Supreme Administrative Court again and were reinstated once more on 18 and 19 June, just after the elections had been held. The controversy looks set to continue, as the [Central Electoral Commission] has filed additional appeals, notwithstanding [section 23(3)] of the [Election of Members of Parliament Act of 2001], which states that decisions of the Supreme Administrative Court are final in the context of election disputes. At any rate, [Central Electoral Commission] Decision No. 348 of 20 June proclaimed the names of elected candidates according to the candidate lists that did not contain the withdrawn candidates.

The later [Central Electoral Commission] decisions are of particular concern. These decisions disregard the rulings of the Court by postponing the settlement of the dispute until after election day. As a consequence, the candidates at issue could not participate in the elections. Furthermore, [Central Electoral Commission] Decision 348 disregarded the court ruling again, as it proclaimed the names of elected candidates regardless of the fact that some candidates were still seeking legal redress.

Additionally, the [Central Electoral Commission] stated that the rulings of the Supreme Administrative Court were not in compliance with the law and thus were not binding. The [Central Electoral Commission] argued in particular that the court did not have jurisdiction over the case at issue. While the jurisdiction of the court was controversial to some extent, this line of argument of the [Central Electoral Commission] is of great concern. It is not within the competence of the parties to determine whether the decision of the court is binding or not. This conflict between two senior State institutions raises serious questions regarding the application of the rule of law in Bulgaria in this instance and should be resolved by the Constitutional Court.

...”

COMPLAINTS

1. All applicants complained under Article 3 of Protocol No. 1 that the electoral administration had refused to comply with the final judgments of the Supreme Administrative Court declaring their striking out of the lists of candidates null and void, and the resulting impossibility of participating in the parliamentary elections on 17 June 2001. In their initial applications the first and the second applicant additionally relied on Articles 14 and 17 of the Convention.

2. All applicants complained under Article 13 of the Convention that they had not had effective remedies in respect of the refusal of the electoral administration to restore them to the lists of candidates.

3. All applicants alleged that their right to a court under Article 6 of the Convention had been breached by the refusal of the electoral administration to comply with the final judgments of the Supreme Administrative Court.

4. In his introductory letter post‑stamped 21 December 2001 the third applicant, Mr Dimitrov, complained that, by issuing a certificate to the effect that he had cooperated with the former State Security, the Dossiers Commission had divulged untrue and defamatory information about him. He relied on Article 10 of the Convention. In their observations in reply to those of the Government, dated 29 November 2006, the other two applicants, Mr Petkov and Mr Georgiev, also raised complaints in this regard. They, as well as Mr Dimitrov, relied on Articles 8 and 10 § 2 of the Convention. In these observations all applicants additionally complained under Article 13 of the Convention that under Bulgarian law there existed no procedure whereby individuals could establish that they had not cooperated with the former State Security, as alleged in the certificates issued by the Dossiers Commission.

THE LAW

1. As the three applications are based on similar facts and as they contain, for the most part, identical complaints, the Court considers it appropriate to join them under Rule 42 (former 43) § 1 of the Rules of Court.

2. In respect of their complaint about the impossibility of participating in the elections by reason of the failure of the electoral administration to comply with the final judgments of the Supreme Administrative Court and to restore them to the lists of candidates the applicants relied on Article 3 of Protocol No. 1 and Articles 14 and 17 of the Convention. These provisions read:

Article 3 of Protocol No. 1

“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.”

Article 14 of the Convention

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 17 of the Convention

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

2.1. The Government averred that the applicants had failed to exhaust domestic remedies. They said that under Article 7 of the Constitution of 1991 the State was liable for the damage caused by the unlawful decisions and actions of its organs and servants. This liability was regulated by the State Responsibility for Damage Act of 1988. The applicants had had the opportunity of bringing actions under section 2(2) of this Act and of receiving compensation for the damage occasioned by their inability to run for Parliament. There was no indication that they had done so.

The applicants replied that the Government had not pointed to examples showing that the State Responsibility for Damage Act of 1988 could successfully be applied in such situations. They further argued that proceedings under that Act would not provide adequate redress for the alleged violation. In addition, the third applicant, Mr Dimitrov, stressed that being a Member of Parliament meant much more than receiving a salary. It amounted to active participation in the public life of the country – something he had done for a number of years. He described at length his involvement in Bulgarian politics during the period 1990–2001 and added that the events of June 2001 had tarnished his reputation and destroyed his political career. This could not be made good through an award of money; the only means of redress would have been a Constitutional Court’s ruling in his favour. However, that court had decided against him. In any event, ordinary citizens did not have standing to lodge applications with the Constitutional Court.

The applicants further averred that an action under the State Responsibility for Damage Act of 1988 could not have solved the wider problems engendered by the electoral administration’s failure to abide by final judgments against it. These could only be remedied through a judgment of the European Court of Human Rights. Nevertheless, the third applicant, Mr Dimitrov, had brought such an action in October 2004. The proceedings were still pending in the first‑instance court.

The Court considers that the question whether the applicants had at their disposal effective domestic remedies in respect of their complaint that they could not participate in the parliamentary elections goes to the merits of their complaint under Articles 13 of the Convention (see below). The Court therefore decides to join the Government’s objection to the merits.

2.2. The Government made no comments on the merits of this complaint.

The applicants said that if the electoral administration had complied with the final judgments against it, they would have been elected Members of Parliament. They added that the Dossiers Commission had not issued any other certificates and had been closed down a few months after the June 2001 elections.

The Court considers that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. In respect of their complaint that they had not had effective remedies in respect of their inability to participate in the elections the applicants 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.”

Neither the Government nor the applicants addressed the admissibility or the merits of this complaint.

The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The applicants alleged that their right to a court under Article 6 of the Convention had been breached by the refusal of the electoral administration to comply with the final judgments of the Supreme Administrative Court. Article 6 provides, as relevant:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Court observes that proceedings concerning electoral disputes, in particular disputes over the right to stand for election, fall outside the scope of Article 6, in so far as they concern the exercise of political rights and do not, for this reason, have any bearing on “civil rights and obligations” within the meaning of that provision (see Priorello v. Italy, application no. 11068/84, Commission decision of 6 May 1985, Decisions and Reports (DR) 43, p. 195; Pierre-Bloch v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997‑VI, p. 2223, § 50; Cheminade v. France (dec.), no. 31599/96, ECHR 1999‑II; Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000‑I; and Hirst v. the United Kingdom (dec.), no. 74025/01, 8 July 2003). Such disputes do not concern a “criminal charge” either.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

5. The Court considers that the applicants’ complaints about the divulgation of defamatory and allegedly untrue information about them by the Dossiers Commission and the lack of effective remedies in this respect fall to be examined under Articles 8 and 13 of the Convention, which provide, as far as relevant:

Article 8

“1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13

“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.”

The applicants submitted that the allegations that they had collaborated with the former State Security had deeply influenced their private lives, by damaging their relations with friends, family and colleagues. As a result of the unlawful divulgation of such information by the Dossiers Commission, negative articles had appeared about them in the press. Even a subsequent ruling of the Central Electoral Commission in their favour could not have remedied that. Their reputations were thus lastingly tarnished. The third applicant, Mr Dimitrov, additionally said that the actions of the authorities had been politically motivated and that the officials involved had acted with a sense of impunity.

The Court does not consider it necessary to examine the substance of the applicants’ complaints. Under Article 35 § 1 of the Convention, it “may only deal with [a] matter ... within a period of six months from the date on which the final decision was taken”. This provision refers to “the final decision” taken in the process of exhausting domestic remedies which are “effective and sufficient” for the purpose of redressing the applicants’ complaint (see Scotts’ of Greenock, Lithgows v. the United Kingdom, no. 9599/81, Commission decision of 11 March 1985, DR 42, p. 33). Where no such remedies are available, the six‑month time‑limit runs from the date of the act or decision complained of (see W. v. Ireland, no. 9360/81, Commission decision of 28 February 1983, DR 32, p. 211; and Camberrow MM5 v. Bulgaria (dec.), no. 50357/99, 1 April 2004).

The Court observes that the complaint under Article 8 relates to specific events – the issuing of three certificates by the Dossiers Commission on or prior to 7 and 8 June 2001. The applicants alleged that they had no effective remedies against the breach of their rights brought about by the issuing of these certificates. Indeed, the Court observes that the proceedings mounted by all three applicants before the Supreme Administrative Court and later by Mr Dimitrov before the Constitutional Court did not concern the alleged interference with their right to respect for their private lives, but only their electoral rights. In these circumstances, the six‑month time‑limit started to run on or before 7 June 2001 for Mr Petkov and Mr Dimitrov and on or before 8 June 2001 for Mr Georgiev.

However, Mr Dimitrov raised a complaint in this regard more than six months later, on 21 December 2001. The other two applicants, who had not formulated such grievances before notice of their applications had been given to the Government, adhered to this complaint at a much later date, 29 November 2006.

Further, the Court does not consider that the applicants were victims of a continuing situation. It does not doubt that the Dossiers Commission’s certificates to the effect that they had collaborated with the former State Security continued to have serious repercussions on their lives. However, the fact that an event has significant consequences over time does not in itself constitute a continuing situation for the purposes of Article 35 § 1. The concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicant a victim (see Montion v. France, no. 11192/84, Commission decision of 14 May 1987, DR 52, p. 227; Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57, p. 108; Posti and Rahko v. Finland, no. 27824/95, §§ 39‑40, ECHR 2002‑VII; and Camberrow MM5, cited above). The applicants’ complaint under Article 8 has as its source specific events which occurred on identifiable dates and therefore cannot be construed as a continuing situation.

As regards the complaint under Article 13, it was raised by all three applicants for the first time on 29 November 2006, also after the expiry of the six‑month time‑limit.

It follows that these complaints were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to join to the merits the question of the exhaustion of domestic remedies in respect of the applicants’ complaint concerning their impossibility of participating, as candidates, in the parliamentary elections;

Declares admissible, without prejudging the merits, the applicants’ complaints concerning (i) their impossibility of participating, as candidates, in the parliamentary elections and (ii) the lack of effective remedies in that respect;

Declares inadmissible the remainder of the applications.

Claudia WesterdiekPeer Lorenzen
RegistrarPresident

Full & Egal Universal Law Academy