Information Note on the Court’s case-law No. 120
June 2009
Petkov and Others v. Bulgaria - 77568/01, 178/02 and 505/02
Judgment 11.6.2009 [Section V]
Article 3 of Protocol No. 1
Stand for election
Failure of the electoral authorities to abide by final court judgments and reinstate the applicants on list of candidates for parliamentary elections: violation
Article 13
Effective remedy
Available remedy in election context offering solely monetary compensation: violation
Facts: All three applicants were registered as candidates in the parliamentary elections to be held on 17 June 2001. Some two and a half months prior to the election, new legislation came into force which contained a provision allowing parties or coalitions to withdraw nominations of individuals who had allegedly collaborated with the former State security agencies. The applicants were struck off the lists of candidates on account of such allegations just 10 days before the elections took place. The decisions to strike them off the lists were subsequently declared null and void by the Supreme Administrative Court. However, the electoral authorities did not restore their names to the lists and as a result they could not run for Parliament.
Law: Article 3 of Protocol No. 1 – It was not the Court’s task to decide whether or not it had been contrary to the Convention to allow political parties to withdraw their candidates on account of their links with the former State security agencies, nor was it required to determine the correctness of the Supreme Administrative Court’s rulings. Its task was confined to assessing whether the electoral authorities’ failure to give effect to the final and binding judgments of the Supreme Administrative Court had violated their rights to stand for election. The reason the electoral authorities had not complied with the judgment was either that they considered that the Supreme Administrative Court had given erroneous rulings or that they believed that the judgments had not become final. However, in a democratic society abiding by the rule of law, it was not open to the electoral authorities to cite their disapproval of findings made in a final judgment as a reason for not complying with it. It was not only contrary to domestic law not to give effect to those judgments, but it also deprived the procedural guarantees available to the applicants of any useful effect and was, in the Court’s view, arbitrary. The Court took account of the difficulties the electoral authorities faced on account of the fact that two of the Supreme Administrative Court’s judgments had been given only a couple of days before the elections. However, those difficulties had been largely attributable to the authorities themselves. Firstly, the new electoral law had been adopted just over two months before the elections took place, at odds with the Council of Europe’s recommendation on the stability of electoral law. Furthermore, instead of requiring political parties to verify links with former State security agencies before nominating their candidates, the parties had been allowed to do so afterwards. Finally, the practical arrangements for the withdrawal of candidates had been clarified only 12 days before the elections took place. All this had resulted in serious practical difficulties and led to legal challenges that had had to be adjudicated and acted upon under extreme time constraints.
Conclusion: violation (five votes to two).
Article 13 – The Court found that the remedy relied on by the Government – a claim under the State Responsibility for Damage Act 1988 – could not by itself be considered effective. Even if ultimately successful, it would not have been sufficient, as it could only have led to an award of compensation. The Court pointed out that in the electoral context only remedies capable of ensuring the proper unfolding of the democratic process could be considered effective. Given the time constraints prior to the elections, the Court concludes that the situation could be rectified solely by means of a post‑election remedy by which the candidates could seek vindication of their right to stand for Parliament before a body capable of ultimately having the power to annul the election result. Under Bulgarian law, even though the Constitutional Court was competent to hear challenges regarding the lawfulness of parliamentary elections, its scope of review had been uncertain owing to a lack of clear and unambiguous provisions. Finally, only a limited category of persons or bodies were entitled to refer a matter to the Constitutional Court and the participants in the electoral process could not have directly compelled the institution of proceedings before it.
Conclusion: violation (five votes to two).
Article 41 – Finding of a violation constituted sufficient just satisfaction.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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