DECISION No 2 of 16 February 2010 on Constitutional Case No 10/2009
The proceedings conform to Art. 149, para 1, item 7 and Art. 66 of the Constitution. The case was filed on 22 July 2009 as the Constitutional Court was approached by the Prosecutor General of the Republic of Bulgaria who in turn had been approached by Yane Georgiev Yanev, the political leader who represented the Political Party Order, Law and Justice (OLJ) and the OLJ-nominated Krassimir Donchev Karakachanov, Boris Yankov Yachev and Boyko Ivanov Vatev who were running for Members of Parliament in line with Art. 112 of the Parliamentary Elections Act (PEA). They all contested the lawfulness of the election of MPs from the Political Party Movement for Rights and Freedoms (MRF).
The challenge contained complaints reporting violations of the rules to organize and hold elections and to vote and determine the election results in relation to Art. 41, para 8, item 2 and para 9 and Art. 88, para 1 of the PEA. The control on these activities falls within the Constitutional Court’s competence. The complaints are to the point as they report the existence of an evident mismatch between the number of applications submitted by people who wished to vote in the Republic of Turkey and the number of names entered into the lists to keep in line with the standards providing how a district polling station can be opened and that, in the opinion of the complainers, evokes the suspicion that the applicants announced significantly outnumber the rightful voters. Further, 23 district polling stations where over 1000 voters turned up were quoted and the complainers thought that could not have happened given the duration of the Election Day unless it was a case of fraud. To support their cause the complainers quoted cases in which voters who did not possess valid identity papers were not let to cast their ballot.
Other cited violations of the election procedure include the danger to have voters who voted twice as their names had not been deleted from the list based on the voters’ permanent residence upon the submission of the application under Art. 41, para 8, item 2 of the PEA and the non-availability of data about the number of voters on the core and the additional list in the records of district polling stations from No 324600111 to No 324600233 (i.e. the number of applicants wishing to avail of the procedure in Art. 41, para 8, item 2 of the PEA and the number of applicants whose names were entered into the additional list on the Election Day). The allegation is that names of voters were entered on the Election Day into the list based on permanent residence though the people voted in a polling station in the Republic of Turkey while the produced district written records were untrue for the number of voters in them was zero, though the signatures of voters make up a three- or four-digit figure.
Written evidence was produced to support the challenge: 123 abstracts of records of the polling stations in districts from № 4600111 to № 4600233. For the sake of proof it was requested to verify the applications submitted under Art. 41, para 8, item 2 of the PEA, the lists of voters with names deleted in the sense of this text and to expose the records of the above district polling stations as misinforming documents.
A position of 18 September 2009 of the MRF parliamentary group insisted that the claim that was lodged in the procedure of the PEA Art. 112 was inadmissible and untenable.
By a request submitted to the Constitutional Court on 1 September 2009 and by a further explanatory request of 18 September 2009 the OLJ leader asked for the opinion of experts on the issues that he had raised and whose clarification would matter for the lawfulness of the election that had been held in the Republic of Turkey.
A Constitutional Court resolution of 6 October 2009 supplemented by a Constitutional Court resolution of 12 October 2009 appointed three experts tasked as follows:
1. To work out the number of applications to vote in the territory of the Republic of Turkey, to spot the towns or villages the applications came from and to see whether the number of applications submitted and the polling stations opened match.
2. To consult the Ministry of Interior databases to check whether the identity papers of voters who voted in the polling stations of districts from № 4600111 to No 4600233 and described in the district records were valid.
3. To see whether the total of voters from the core lists and voters from the additional lists made up on the Election Day according to the verified signatures is the total-up of voters as per the district records and whether the voters from the core list did vote or whether the voters are in fact those whose names were additionally entered.
4. To judge whether given the physical time it takes for a voter to cast the ballot it is possible for a polling station that reported ballots from 1000 voters and more to have really handled that reported number.
On the basis of the evidence gathered the Constitutional Court accepted the following as confirmed:
The experts of the appointed treble appraisal prepared their written statements as per the assignment the Court had given them and following a scrutiny of the documents that the Central Electoral Commission (CEC) had provided them with, namely: 123 envelopes containing core and additional lists of voters names from the 123 polling stations that were opened in the Republic of Turkey; copies of the records of the district electoral commissions (DECs) except for DEC Record 324600169 – Corlu 13, copies of records – cables of the same DECs, the written reply of the Head of Office of the Minister of Foreign Affairs No КС 17/26.10.2009 with an attached certified copy of open cable ПР-17-668/15.06.2009 of the Ambassador in Ankara to the Chair of the In-house Electoral Commission at the Ministry of Foreign Affairs about the 123 polling stations opened in the territory of the Republic of Turkey, a certified copy of a letter by which the Ministry of Foreign Affairs delivered to the Directorate General Criminal Police – Directorate Countering Organized and Grave Crime the requested materials and documents under No 55 -00-45 of 9.9.2009.
Regarding the experts’ first task, viz. the verification that the applications to vote match the number of opened polling stations in different centers, they drew only on the data in the above letter as it shows that the applications from Bulgarian citizens to vote in the Republic of Turkey were 27,235 and were sent to the Ministry of Interior for verification. For that reason the experts could not physically see the applications. The letter in question says that the Embassy in Ankara received 5127 such applications, the General Consulate in Istanbul received 15,556, the General Consulate in Edirne received 6552. Regarding polling stations that were opened: 28 in towns mentioned in point 1; 72 – in point 2; 23 in point 3.
As the experts did not physically touch the applications, they drew the conclusion that the polling stations had been opened ignoring the minimum number of applications as required by the law on the basis of computations in line with the PEA’s Art. 41, paras 8 and 9. As the experts examined the core lists of voters they found out that polling station № 326400111 had been opened for 51 applicants whereas the required minimum is 100 as per the PEA’s Art. 41, para 8, item 2 and that polling station No 324600151 and DEC № 324600152 had core lists of 96 and 89 voters respectively.
Regarding the experts’ second task, namely the consultation of the MoI databases to see whether the identity cards of voters who had voted in polling stations from No 324600111 to No 324600233 were valid when compared to the data entered into the lists, the conclusion was that the comparison of the databases and the lists of voters should be made by the MoI Directorate ,,Bulgarian Identity Documents”. As such an exercise would require vast human resource input and take a lot of time the suggestion was that the said Directorate should confine to a sample of 1% of all who went to the polling stations (cf. letter Ref. No Б - 160098/24.11.2009). While the experts found out that I.C. (= identity card) or I.P. (= international passport) were entered en masse into the box ,,Identity Document”, however, the number of the document had not been entered and that a great number of additional lists go without the domiciles of voters who had been additionally entered, they noted (see their explanations at the court hearing on 22 December 2009) the PINs (Personal Identification Numbers) of voters who allegedly went to the polling stations could be of help and that the MoI databases could be consulted. The experts’ conclusions derive from the concrete data for individual polling stations in the table section and in the DEC explanatory note that are given as attachments. The verification was never made for reasons that it would entail obvious difficulties but also as a result of the judgment that the elucidation would not require it – see below in the discussion and consideration of the gathered evidence.
Regarding the experts’ third task, the verification that the number of voters from the core list and the number of voters who were additionally entered into a list on the Election Day on the basis of the signatures match the total number of voters on the records of each polling station and that the persons from the core list did vote or else it was only persons who were additionally entered into the list, the experts made the following conclusions: their comparison of lists and records showed the DEC records contained from 1 to 5 names over what the list of voters contained and attributed the mismatch to a mistake of fact. The election papers were not appropriately filled in: the DECs did not sign the additional lists but for stations No 324600112, 324600123, 324600124, 324600125, 324600126, 324600201, 324600208 whereas there were no core lists for stations No 324600190 and 324600215.
According to the conclusion the voters from the core list did not go at all to polling stations No 324600214, 324600213, 324600212, 324600201, 324600174, 324600173, 324600146, 324600143, 324600140, 324600137, 324600136, 324600133, 324600130, 324600129, 324600127, 324600123, 324600113. In certain polling stations a few voters from the core list did vote as described in detail in the table and in the DEC explanatory note that are attached to the experts’ conclusion. As the experts counted the signatures of voters from the additional lists, they found out that the handwriting is neat and legible which takes a lot of extra time.
Regarding the experts’ fourth task, viz. the capacity of polling stations that handled over 1000 voters on the Election Day, the experts computed on the basis of the physical time it takes for one voter to cast his or her ballot in compliance with the PEA’s Arts. 85-87 and the CEC 2009 Methodology Guidance. Experimentally, by the simulation of a situation in a polling station it was computed that it takes at least 50 seconds for a voter to cast his or her ballot. However, the time spent by a voter in the booth was not taken into consideration. With an Election Day duration of 13 hours – from 6.00 AM to 7.00 PM – and in the absence of reports from the examined polling stations that the 2009 CEC had permitted them to open an hour earlier, the experts concluded that the maximum number of voters that a polling station could handle was 936. Given this computation, polling stations that handled a number of voters exceeding the above as a matter of fact were unable to provide conditions in which the right to vote could be really exercised and according to the check, the table and the explanatory note to the conclusion implicate 30 polling stations.
Being given a CEC assignment and in compliance with the PEA’s Art. 23, para 1, item 19, the Directorate General “Civil Registration and Administrative Service” (DG GRAO) with the Ministry of Regional Development and Public Works (MRDPW) cross examined the list of voters in and outside Bulgaria to detect voting twice. The conclusion was that Bulgarian citizens who voted twice at the parliamentary elections on 5 July 2009 totaled 174 in Bulgaria and 79 in the Republic of Turkey. The same crosscheck detected that persons who had no voting rights were let to vote as follows: 33 minors (aged under 18), 26 mentally disable; 6 prisoners; 148 persons who do not have Bulgarian citizenship.
The need of further factual clarification on the case made the Court pass a resolution (27 January 2010) for further expert scrutiny on the basis of the circumstance that the experts’ conclusion showed that apart from few polling stations none of the lists into which names were additionally entered on the Election Day were signed by the DEC Chairman and Secretary. The experts confined themselves to polling stations where none from the voters from the list had voted; to stations that had not sent records to the CEC or if they did send such, their first page was missing. These hypotheses enable to identify the number of ballots cast for one political party or another running for Parliament. In the assumption that a list with voters’ names that were additionally entered on the Election Day cannot be an official documentary evidence of voting without the signatures of the DEC Chairman and Secretary affixed to it, a new formula could be devised to redistribute the seats won by each party or coalition represented in Parliament.
To fulfill their tasks, for their further conclusion the experts examined the lists with voters’ names that were additionally entered on the Election Day in the polling stations No 324600113, 324600115, 324600127, 324600129, 324600130, 324600133, 324600136, 324600137, 324600138, 324600140, 324600143, 324600146, 324600169, 324600173, 324600174, 324600190, 324600192, 324600211, 324600212, 324600213, 324600214, 324600215, 324600232 and found out that the total number of valid ballots and their breakdown were as follows: for OLJ (Order Law Justice) – 12 ballots; for Political Party Leader – 5; for GERB – 58; for MRF – 18,140; for Ataka – 26; for Coalition for Bulgaria (CB) – 30; for Union of Patriotic Forces UPF Zashtita – 4; for NDSV – 23; for Bulgarian Leftwing Coalition – 9; for Liberal Alternative and Peace Party – 2; for Green Party – 4; for Social Democrats – 8; for Other Bulgaria Political Party – 3; for Union of Bulgarian Patriots (UBP) – 3; for National Movement for the Salvation of the Homeland Political Party – 1; for New Democracy Bulgarian National Union – 5; for Blue Coalition – 14; for Coalition ,,For the Homeland – Democratic Citizens Initiative – New Leaders” – 1. At a court sitting on 9 February 2010 the experts finalized their conclusion that the jury sustained regarding, however, only the number of the valid ballots cast for the Coalition for Bulgaria in the polling stations that the experts dealt with: the initially assumed 30 valid ballots went up to 33. With the corrigendum the total number of ballots cast in the polling stations that are the target of the inspection was 18,351.
By a resolution of 9 February 2010 the Constitutional Court assigned the CEC to make a new redistribution of the valid ballots for parties and coalitions and to recalculate the election returns in keeping with the CEC Methodology and to make them consistent with the experts’ additional conclusion by subtracting from the total number of valid ballots cast for nominees the number arrived at by the experts after their inspection of the polling stations that had been opened in the Republic of Turkey (pp. 8 and 9 of the written conclusion along with the above said corrigendum). It is up to the CEC to decide on a redistribution of the seats in Parliament and to name the MPs who would drop out and who would replace the dropouts.
A position of 9 February 2010 of the MRF group in the 41st National Assembly objected to the methodological approach opted for to clarify the case by the appointment of an additional expert examination.
The Constitutional Court took the following position on the objections of the MRF Parliamentary Group:
Regarding the first objection, a resolution was approved to adjudicate on merit the challenge of Members of Parliament from that political party as the challenge was seen as sustainable and initiated by a legitimate party that acted in line with the PEA’s Art. 112 reference to which is made by Art. 66 of the Constitution which provides for the procedure by which the legitimacy of an election may be contested before the Constitutional Court.
The second objection concerning the Constitutional Court’s competence is not tenable either. It is claimed that the Constitutional Court shall not strip MPs of their status once sworn in and having assumed functions for ineligibility or incompatibility. The prerogative under Art. 149, para 1, item 7 of the Constitution is different from the prerogative under Art. 72, para 1, item 3 of the Constitution as the former concerns the challenge to the legality of an election of an MP and his or her removal regardless of being sworn in or not following a Court decision – Art. 66 of the Constitution in relation to Art. 112 of the PEA and the latter pertains to a legitimate election in the face of certain impediments to the election of a certain MP or to the compatibility of functions within the civil service or activity – Art. 65, para 1 and Art. 68, para 1 of the Constitution. This concept draws on Decision No 8 of 7 October 2009 on Constitutional Case No 9/2009 to remove two MPs elected by the proportional representation system after the assumption of functions upon being sworn in.
The third objection concerns the admissibility of the challenge that refers to the non-sustainability of the claim of election of certain MPs while it fails to see any direct relation between the voting in the Republic of Turkey and their being elected in multi-seat constituencies in Bulgaria. That objection will be discussed below in the judgment of the sustainability of the objection as it is pertinent to the adjudication of the objection on its merits.
However, that objection raises the question of the limits that determine the subject matter of the challenge on which the Constitutional Court is to rule. Understandably that subject matter is determined by the sustainability and the particulars of the challenge of the legitimacy of the election of certain MPs on grounds of breaches of the election process in the Republic of Turkey. The resolution that the case shall be adjudicated on its merits is to that effect. Therefore, the Constitutional Court is bound to rule within the framework of the subject matter as limited by the particulars of the challenge. With the existing proportional representation system whereon the election results in terms of the distribution of seats are determined at national level and not in the constituencies where they did vote for tickets (the same holds true of the voting abroad whereon the ballots cast are not attributed to a constituency and where they vote for parties and coalitions but do not vote for their nominees) the challenging party is not in a position to predict what reshuffle would occur in Parliament if it appeared the election was not legitimate. In such a hypothesis therefore the particulars of the challenge under Art. 149, para 1, item 7 of the Constitution that limits the subject matter of the Constitutional Court proceedings must be understood as relevant only to the detection of breaches in the election process in the 123 polling stations that were opened in the Republic of Turkey. However, the particulars of the challenge do not make it binding on the Court to rule on the unlawful election of specifically named MPs. According to Art. 149, para 1, item 7 of the Constitution the Court is bound to pronounce the names of MPs who will drop out in the reshuffle of election results. If the challenge is honored and if the election process was found to be inconsistent with the law, the Constitutional Court decision will remove certain MPs though they may not be the ones whose election is challenged. The Constitutional Court decision will instruct the CEC as an authority that announces the election results to pronounce the names of MPs, on the basis of the CEC-approved methodology, who will replace the MPs whose election was pronounced to be illegitimate.
For the Constitutional Court to exercise control with the consequences referred to, it is needed to establish, in addition to breaches in the election process, how these breaches relate to the won seats that are challenged and said to be unlawful. This means not just a conclusion of vitiation of the election process as affected by the said breaches and accordingly the exclusion of invalid ballots from the total number of valid ballots cast but also a redistribution of the remaining valid ballots among parties and coalitions in order to recalculate the seats for the parliamentary represented political parties.
With the existing proportional representation system, the invalidation of the challenged election of an MP is possible only if it is found out that the valid ballots cast for the political party or coalition that have nominated him or her, have been counted or reported in a wrong way. The rectification gives the exact number of such ballots which change the configuration with respect to the valid ballots cast for the remaining political entities that run for Parliament and thus enables the recalculation and redistribution of seats among elected MPs at national level.
The abovementioned methodological premises should underlie the approach to the resolution of the case in question where the challenge of the election of MPs is seen as deriving from breaches in the polling stations in the Republic of Turkey. The judgment on the sustainability of the challenge of the validity of the election must consider, on the one hand, whether the breaches in the election process corrupt the electorate’s will and, on the other hand, how the latter affects the valid ballots cast for each parliamentary represented party or coalition, i.e. how these ballots are redistributed among the political entities and in that way result in a redistribution of seats. In that regard when the initial conclusion of the experts’ work is discussed, the general deduction thus invited is that if in the former case, apart from the indications of voting twice, there exists just a hypothetical but not a proved connection between breaches and the corruption of the vote, in the latter case there exist no indications whatsoever as the secrecy of the ballot makes it impossible to know for which political party or coalition the ballots were cast, i.e. to identify the party or coalition that benefited from the breaches in the election process and respectively, the number of valid ballots that were cast for each party or coalition.
The experts’ findings on the first task did not support the alleged vitiation of the election returns as the PEA’s Art. 41, para 8, item 3 gives heads of diplomatic and consular missions of the Republic of Bulgaria the freedom to decide to open, at their own discretion, polling stations in towns abroad.
The verification of the validity of identity papers by the Ministry of Interior – the second task assigned to the expert check – was not made for the above-cited reasons: the vast amount of work and the limited possibility to do the work within a reasonable time frame. Nonetheless, as the Personal Identity Number is entered into the list of voters upon casting the ballots on the Election Day, just as is the voter’s identity document – be it an identity card or an international passport, without entering the number though – the experts thought that such a verification is possible but will be irrelevant to the outcome of the case given the fact that as of the Election Day the identity cards were still valid and the 10-year period of validity had not expired, they should be treated as valid identity papers, a verification that might possibly affect other documents that the voters produced to prove legitimacy, could not justify the invalidation of the election results even if the identity document was found to be invalid for this move will in no way show how the valid ballots cast for the parties and coalitions that won seats in Parliament are to be redistributed.
The comparison of the lists of voters and DEC records – the third task – found out that voters from the core list did not turn up at all in 17 polling stations and that it was only voters additionally entered into a list on the Election Day who did vote whereas in many other polling stations a few voters from the core list did vote and the great number was made up of voters who had been entered into the additional lists. The other essential conclusion was that when the signatures of voters from additional lists were counted, it appeared the handwriting was legible, regular and neat, difficult as it is when names are scribbled additionally on the Election Day given the tension and their great number. Suspicions that the lists in question were made up in advance to balance the poor performance of the core list voters and that the core lists were hardly anything but a pretext to open a polling station and given the lack of guarantees of efficient control by the election administration make the allegations of breaches that invalidate the ballots cast only a supposition.
The discrepancy that transpired between the Election Day duration and the 1000 and more voters who cast their ballots in 30 polling stations is not to be construed as a proof of corruption. The finding that the simulation of the actions of a voter and of the actions of the commission to see how much time it would take together and the multiplication by 936, i.e. the maximum 1000 was not reached, could not prove, in the absence of evidence of breaches, that valid ballots were not cast at all in these polling stations. Even upon an assumption that the ballots from the 936th ballot onwards in polling stations to which over 1000 voters went were invalid, the assumption is not sufficient to invalidate the challenged seats of elected MPs. Though the MRF ballots dominated in the polling stations opened in the Republic of Turkey, yet a certain number was cast for other parties and coalitions that are represented in parliament and given the secret ballot, there is no way to know what the new configuration would have been and accordingly, to redistribute seats won by parties and coalitions under the proportional representation system.
With this explanation in mind the challenge by the Prosecutor General to the Constitutional Court on the basis of Art. 150, para 1 of the Constitution in relation to Art. 112 of the PEA of the legitimacy of the election of the following Members of Parliament from the Movement of Rights and Freedoms is to be dismissed as unsustainable: Hasan Iliaz Hadjihasan, Veliko Turnovo Multi-seat Constituency; Iskra Dimitrova Mihailova-Koparova, Pazardjik Multi-seat Constituency; Tundjai Osmanov Naimov, Plovdiv Region Multi-seat Constituency; Burhan Iliazov Abazov, Rousse Multi-seat Constituency; Elin Elinov Andreev, Smolyan Multi-seat Constituency; Emil Kirilov Ivanov, Sofia Region Multi-seat Constituency; Lyutvi Ahmed Mestan, Stara Zagora Multi-seat Constituency.
On the basis of the additional expert conclusion which, when it found breaches in the inspected polling stations makes it possible to calculate the valid ballots cast for a party or a coalition in these polling stations and subtract them from the total number that was cast for them, one may set the new base to recalculate the seats won by each political entity represented in Parliament under the proportional representation system. The total number of ballots cast for parties and coalitions in the inspected polling stations in the Republic of Turkey to be subtracted is 18,351 and the breakdown is: OLJ (Order Law Justice) – 12 ballots, Leader Political Party – 5 ballots; GERB – 58 ballots; MRF – 18,140 ballots; Ataka – 26 ballots; Coalition for Bulgaria – 33 ballots; Union of Patriotic Forces (UPF) Zashtita – 4 ballots; NDSV – 23 ballots; Bulgarian Leftwing Coalition – 9 ballots; Liberal Alternative and Peace Party – 2 ballots; Green Party – 4 ballots; Social Democrats – 8 ballots; Other Bulgaria Political Party – 3 ballots; Union of Bulgarian Patriots (UBP) – 3 ballots; National Movement for the Salvation of the Homeland Political Party – 1 ballot; New Democracy Bulgarian National Union – 5 ballots; Blue Coalition – 14 ballots; Coalition ,,For the Homeland – Democratic Citizens Initiative – New Leaders” – 1 ballot.
These ballots that are reflected in the lists of additionally entered on the Election Day names of voters but that do not have the strength of documentary evidence must not participate in the calculation of seats for the parties and coalitions that are represented in Parliament. The number of such ballots can be computed as the secrecy of ballot does not preclude the computation. The result is possible to achieve as the check covers 23 polling stations only where the list of voters whose names were additionally entered on the Election Day was not signed, despite the fact that just 7 out of 100 remaining polling stations complied with the requirement for signature. In that context an account was taken of the circumstance that in the polling stations that were inspected none of the core list voters went to the polling station, that none of these polling stations delivered a record or if they did, the first page was missing and this makes possible not just to ignore ballots that had been cast by voters whose names were additionally entered but also to establish the nominees for whom the ballots had been cast and the number of these ballots. When none from the core list voters went to the polling station, i.e. the applicants to vote abroad, and given the absence of the original document to prove the voting, i.e. a polling station record or the record’s first page, it becomes possible to say how the valid ballots were spread among the parties and coalitions. This is so as the check covers only the voters whose names were entered on the Election Day into an additional list which is not a valid document and when such voters are counted out, the valid ballots cast for parties and coalitions are to be redistributed on a new basis.
The objections to the findings of the further expert check and its legal conclusions as set in the MRF Parliamentary Group position of 9 February 2010 are untenable.
The conclusions are erroneous in that they maintain that because of the nature of the system of proportional representation it is impossible to invalidate elections in individual polling stations. It is quite the contrary as when it is impossible, because of the secret ballot, to count the cast valid ballots which are to be counted out from the basis of the calculation of seats among nominees, as the case is, that might be done for polling stations where only voters whose names were additionally entered into a list on the Election Day voted. For that reason the check did not cover and respectively there was no exclusion from the distribution of valid ballots for parties and coalitions of the 116 polling stations where the list of voters whose names were additionally entered into the list of names of voters on the Election Day was not signed and the check was confined to 23 polling stations only. This enabled the achievement of maximum certainty in counting and respectively in redistributing the number of valid ballots in the polling stations that the challenge refers to.
According to the PEA, the notion ,,list of voters whose names are additionally entered” is not used in voting outside Bulgaria; outside Bulgaria the list of voters is one and consists of two parts. Part 1 is the core list which contains the names of voters who have submitted an application to the embassy or the consular mission of the Republic of Bulgaria in the respective foreign country in order to express their desire to vote where they reside abroad; Part 2 contains the names that have been additionally entered on the Election Day. Part 1, according to the experts’ findings, (see the conclusion and explanations of experts at the sitting on 9 February 2010) was signed by the head of the Bulgarian diplomatic or consular mission in the Republic of Turkey, whereas Part 2 was not signed by the DEC Chairman and Secretary apart for 7 polling stations and the voters whose names were entered were in or out of the core list’s numerical succession. In such a form it has none of the attributes of an official document for the non-signing by the said officials dispossesses it of the strength of evidence that certain actions were performed in the presence of the DEC, namely, that the persons whose names were additionally entered into the list on the Election Day really voted.
Though the PEA’s Art. 37 does not explicitly provide for such signature, it is a self-implied essential element of an official document. Such a requirement is posed in Addendum 1 to the Presidential Decree 114 of 7 May 2009 to approve the election papers for the Parliamentary Elections on 5 July 2009 (DV, No 34/May 2009). For that reason the requirement that the list of voters whose names are additionally entered on the Election Day should be signed is an integral part of the election law which must be observed by the DEC officials if this list is to be valid as an official document.
The non-signature of the lists of voters whose names were additionally entered and who voted abroad has nothing to do with the validity of the ballots that they had cast. They have to be counted out from the total of valid ballots not because they corrupt the vote due to the impossibility to identify the electorate’s will expressed in the regular vote or in the cast of a ballot that falls short of the established standard – the PEA’s Art. 97 – but because the list of voters whose names were additionally entered on the Election Day has not the strength of evidence vis-à-vis the fact of voting by these persons in the polling station.
Though the document on which the election returns are based is a DEC record it includes as an indispensable element the number of the core list voters and the number of voters whose names were additionally entered on the Election Day – see Addendum 51 of the approved standards of election papers (DV, No 34/8 May 2009). Therefore the vitiation of the validity of list of voters affects the DEC record and this in its turn affects the calculation of election results.
To fulfill the Constitutional Court assignment by the resolution of 9 February 2010 the CEC asked the Information Service AD, the scrutineer, to work out the results on the basis of the Methodology for the Computation of Ballots (DV, No 34/8 May 2009 and No 38/22 May 2009). Pursuant to a letter (incoming mail Reg. No 16/12.02.2010) of the Information Service AD by Decision No НС-255/15.2.2010 of the CEC, the CEC made a recalculation of the election results of the parties represented in Parliament according to the CEC-approved Methodology for the Computation of Ballots. The recalculation resulted in a reshuffle in the 41st National Assembly and the dropout of the following MPs: 7th Multi-seat Constituency – Mariana Ivanova Darakchieva, nominated by the Blue Coalition; 8th Multi-seat Constituency – Roushen Mehmed Riza, nominated by the MRF; 23rd Sofia Multi-seat Constituency – Atanas Markov Semov, nominated by the OLJ. The result was not affected by the rectifications that, according to the letter of the Information Service AD, had to be made in totaling the valid ballots that had been cast in the inspected polling stations – 24, not 23 for the NDSV; 10, not 9 for the Bulgarian Leftwing Coalition; the result was not affected either by the discrepancies that transpired between the wired records and the original polling station records that show one valid ballot for the Blue Coalition, one valid ballot for “For the Homeland – Democratic Citizens Initiative – New Leaders” in Polling Station No 324600113 and 3 valid ballots for the NDSV in Polling Station No 324600115; these valid ballots had not been reckoned in the conclusion of the additional expert appraisal. For that reason the number of ballots to be counted out in the recalculation for the redistribution of seats among the parties and coalitions represented in Parliament is 18,358 and not 18,351 with the following breakdown: for the NDSV – 27 instead of 23 valid ballots; for the Bulgarian Leftwing Coalition – 10 instead of 9; for the Blue Coalition – 15 instead of 14; for ,,For the Homeland – Democratic Citizens Initiative – New Leaders” – 2 instead of 1.
In consideration of the above-stated the election of the following MPs should be invalidated: Mariana Ivanova Darakcheiva, 7th Gabrovo Multi-seat Constituency; Roushen Mehmed Riza, 8th Dobrich Multi-seat Constituency; and Atanas Markov Semov, 23rd Sofia Multi-seat Constituency whereas the rest of the General Prosecutor’s challenge should be dismissed as unsustainable.
Председател: Евгени Танчев