Decision No 12 of 13 December 2011 on Constitutional Case No 11/2011
The Constitutional Court instituted proceedings on 16 November 2011 following the receipt of a petition from 71 Members of Parliament. The petitioners request that the elections for President and Vice-President of the Republic of Bulgaria, which were conducted in two rounds on 23 and 30 October, respectively, be declared unlawful.
It is, inter alia, alleged that the elections were compromised by grievous infringements of the Constitution and the Electoral Code (published in the State Gazette (SG) No 9/2011; last amended SG No 45/2011); that that the arrangements for conducting the presidential and local elections were inadequate; that the working hours of polling stations were unreasonably extended in contravention of the law; and that the ballots were flawed.
The Constitutional Court, having examined the merits of the petition, instituted proceedings on the case and by its Decision of 24 November 2011 determined that the one-month period for adjudicating the dispute envisaged in Article 93(6) of the Constitution commenced on the day of receipt of the petition.
It the same decision the Court noted that the timeframe referred to in Article 93(6) of the Constitution – being of a statutory nature and therefore the only one that the Court could rely on as a point of reference – commences on the day of receipt of the petition referred to in Article 150 of the Constitution.
No evidence has been annexed to the petition. Having examined the allegations and sources of information mentioned therein, the Constitutional Court requested written evidence from the Central Electoral Committee (CEC), Directorate-General Civil Registration and Administrative Services (DG CRAS) of the Ministry of Regional Development and Public Works and from the Minister of Internal Affairs.
Following due deliberation of the allegations and arguments set forth in the petition, the opinions submitted by the parties and the written evidence received, the Constitutional Court found the petition requesting that the elections for President and Vice-President be found unlawful unmeritorious on the following grounds:
The Constitutional Court (in accordance with the powers vested in it pursuant to Articles 149(1)(6) and 149(1)(7) of the Constitution) reviews the constitutionality of both presidential elections and – in part or in full – of parliamentary elections. However, when ruling on disputed parliamentary elections, it is not limited by a specific timeframe stipulated by law. This means that it is essential to recognise the significance accorded by the Constitution itself to the adjudication of disputes relating to the legality of presidential elections within a period of one month. That significance derives from the requirement stipulated in Article 93(6) of the Constitution and not in lower-ranking statutory acts. The Head of State embodies the stability and continuity of the State. It should be emphasized that a new Head of State is elected whilst the formerly elected president’s term of office is still ongoing. For this reason, the Constitution lays down a classic rule designed to preclude interregnum periods in which a country does not have an elected Head of State as the ultimate embodiment of statehood.
Article 93(5) of the Constitution stipulates a strict timeframe for the election of a President and Vice-President. In particular, elections should be conducted not earlier than 3 months or later than 2 months prior to the date on which the term in office of the current incumbent of the office of Head of State expires. In its earlier jurisprudence the Constitutional Court has described this timeframe as a ‘dictum to be rigorously adhered to’ (Judgment No 18/1996 in Case No 22/1996 on the record of the Constitutional Court). This conclusion fully applies to the one-month period referred to in Article 93(6) of the Constitution in which a constitutional dispute concerning the legality of presidential elections is to be adjudicated on merit, i.e. the period in which a judgment in the case is to be delivered. The brevity of the envisaged timeframe and the finality and incontrovertibility of election results nurtures the stability of statehood in a constitutional democracy. The stipulation of a one-month period for adjudicating disputes relating to presidential elections undoubtedly bears upon the nature of the proceedings brought before the Constitutional Court and in line with the rules governing the scheduling and hearing of cases requires great expedience in gathering evidence and appraising all aspects of the dispute.
1. Alleged infringements with implications for the set up of polling stations
The petitioners allege limitations of the active right of citizens to vote by reason of the unlawful manner in which polling stations were set up and their proceedings organised, particularly where more than 1 000 voters per polling station were registered in the electoral roll (infringement of Article 72(1) of the Electoral Code). In parallel, they accept the findings set out in the expert report submitted in Case No 10/2009 on the record of the Constitutional Court (cf. Judgment No 2/2010) according to which a maximum of 936 citizens may cast their vote in any single polling station within the statutory length of the time during which a station remains open on the day of elections. The Court notes that the figure concerned (936) was determined in the framework of a dispute relating to the legality of parliamentary elections allowing, therefore, for a margin of uncertainty in the case of holding presidential and local elections simultaneously. In connection to this, it further notes that the lawmaker by virtue of enacting special rules on the application of the Electoral Code in the case of conducting elections in different configurations (paragraph 5 of the Supplementary Provisions of the Electoral Code) has failed to elaborate rules that allow the size of polling stations to be determined, which undoubtedly constitutes an omission on its part. The evidence presented to the Constitutional Court incontrovertibly shows that more 1 000 citizens cast their votes in certain polling stations. However, records also show that on 23 and 30 October 2011, i.e. on the days when the first and second round of the presidential and local elections took place, respectively, the number of voters per polling section remained lower than 936 voters throughout Bulgaria (this is corroborated by the information received from the Central Electoral Committee). This warrants the conclusion that any infringements that did occur were not of a nature that would limit or jeopardise the active right of citizens to vote. This is so because at 19:00 hours on the day of elections citizens were still waiting to cast their vote in front of polling stations and according to Article 184 of the Electoral Code they were entitled to do so.
The majority of cases where more than 1 000 citizens cast their votes in a single polling station were primarily overseas (with the greatest number in Turkey). This should not be construed as an infringement of the law because the sole requirement for opening a polling station overseas is an advance confirmation that least 100 citizens are willing to vote. This means that any other willing voters who turn up to cast their ballot on the day of elections would have to be added to the electoral roll of the station concerned. On the other hand, voting overseas in October this year[1] was largely facilitated because citizens residing overseas voted for a president and vice-president only, not having the right to vote in local elections.
In accordance with Article 71(2) of the Electoral Code, polling stations in Bulgaria are to be set up 55 days prior to the day of elections at the latest by the mayors of municipalities. No information is available about any complaints filed with courts that contest the mayoral orders issued pursuant to Article 71(3) of the Electoral Code, including those by which polling stations where more than 1 000 citizens voted were set up. Hence it follows that the arguments alleging the unlawfulness of the presidential elections on the grounds of the number of citizens allowed to vote in each polling station are unmeritorious.
The petitioners do not allege a failure on the part of the CEC to discharge its statutory duties pursuant to Article 26(1)(5) in conjunction with Article 30(1) of the Electoral Code in respect of the appointment of the municipal electoral committees (MECs). However, they do question the unreasonably high staff turnover at the level of MECs. Article 30(1) of the Electoral Code explicitly envisages a procedure for the replacement of appointed members of the MECs on the grounds of Article 25(1) of the Electoral Code. The grounds envisaged in the cited provision are both subjective and objective in nature. In most cases they arise on disciplinary grounds (resignation of a member or unreasonable failure to participate in the meetings of a committee). Given that MECs are composed of representatives of different political parties and coalitions, it would be unreasonable to hold the CEC accountable for the high rate of turnover at the level of MECs. The only action that may be taken by law is to repeatedly undertake the procedure laid down in Article 30(1) with a view to appointing new MEC members in lieu of the one whose powers were terminated. The petitioners do not allege any specific infringements in this regard.
The Constitutional Court finds that the failure of the lawmaker to stipulate a timeframe for the issuance of methodological guidelines for the proceedings of electoral committees and for the training of their members (Article 26(1)(3) of the Electoral Code) is a deficiency of the law. However, this does not mean that the delay on the part of the CEC in discharging the functions concerned constitutes an infringement. However, this general conclusion does not apply to the detected deficiencies in the organisation of the elections without prejudice to the fact that overall the vote of Bulgarian citizens and the veracity of election results were not compromised. The presented evidence and its appraisal warrant the conclusion that both the central and local election administrations were inadequately prepared for the task, which created significant difficulties and compromised the smooth simultaneous conduct of presidential and local elections.
3. Limitation of the active right of citizens to vote by striking them off the electoral roll
Undeniably, the electoral roll is the fundamental prerequisite that allows enfranchised citizens to cast their vote on the sole condition of being entered into the electoral roll, visiting the local polling station (LPS) on the day of elections and presenting a valid document ascertaining their identity to the committee. By rule, electoral rolls are compiled on the basis of the permanent address of the citizens entitled to vote at each polling station (Article 41(1) and (2) of the Electoral Code). According to the Code a citizen may only be entered into the election roll of one polling station (Article 40(2) of the Electoral Code) so as to preclude the possibility of one person casting their vote more than once. Election rolls may be corrected and modified. To wit, omissions and errors in the initially compiled election rolls are typically foreseen. Hence the possibility for election rolls to be subsequently modified to ensure they reflect the up-to-date status of voters. This is the reason why the lawmaker has envisaged procedures for striking off, supplementing and otherwise amending rolls and rectifying other detected omissions and errors in them. This may be achieved by undertaking a procedure whereby an aggrieved party lodges an application for inclusion in the electoral roll with the mayor of a municipality. Swift recourse to a judicial hearing is also envisaged in case a local administration refuses to satisfy an application (Article 50(1) of the Electoral Code).
As regards the presidential elections, the law does not stipulate a requirement according to which a citizen is entitled to vote depending on their current or permanent residence as it does for local and European Parliament elections. For this reason, electoral rolls typically include all Bulgarian citizens of age (18 years or older) on the day of elections who are not subject to interdiction on the grounds of not being of sound mind or being convicted of a felony and currently serving an effective prison sentence (Article 55(2) of the Electoral Code). The analysis of the provisions of the Electoral Code and the evidence presented to the Constitutional Court warrants the conclusion that a citizen may be struck off the electoral roll for two main groups of reasons:
The first one includes those citizens who on the day of elections are deprived of suffrage (they are no longer Bulgarian citizens, have been placed under interdiction on the grounds of a court declaring them of unsound mind or serving an effective prison sentence) or are deceased (Article 46(1 and (2) of the Electoral Code); those who upon request have been registered to vote at a different polling station (Article 49(2) of the Election Code); those who have been entered into the electoral roll on the basis of their current residence (Article 53(3) of the Electoral Code); those who have requested permission to vote overseas (the second sentence of Article 44(2) of the Electoral Code); or have been granted permission to vote in another location (paragraph 5(1) of the Supplementary Provisions of the Electoral Code). Citizens in the above category are entered into the list referred to in Article 187(1)(7) of the Electoral Code, i.e. these are the citizens whose details have been struck off the electoral rolls and who do not have the right to have their details re-included in them on the day of elections (cf. Letter No AU-2339 of DG CRAS). The list includes those citizens who by Constitution and by law do not have an active right to vote or who, acting on their own initiative, have requested that they be allowed to vote at a polling station other than the one in which they may vote on the grounds of permanent residence in which case they would have been included in the electoral roll of another polling station and allowed to exercise their voting right elsewhere. Hence the alleged deprivation of citizens of their constitutional right to vote is unfounded. Undoubtedly, the errors in the list referred to in Article 187(1)(7) of the Electoral Code, insofar as no action was taken to rectify them in accordance with the procedure laid down in Articles 46(5), 48 and 50 of the Electoral Code, could indeed effectively prevent a citizen from exercising their active right to vote. In all other cases, a citizen who ascertains their identity by legitimate means should be allowed to vote (this is expressly mentioned in paragraph 87 of the Methodological Guidelines for the proceedings of electoral committees developed by the CEC). In connection to this, the Constitutional Court notes that DG CRAS did not act arbitrarily. On the contrary, its actions were based on information received from other competent bodies, inter alia, the Directorate-General for the Execution of Penalties of the Ministry of Justice (in respect of those citizens serving effective prison sentences), the Ministry of Foreign Affairs (in respect of those citizens who had requested permission to vote overseas), and from the competent bodies referred to in Article 40(1) of the Electoral Code, including local administrations responsible for keeping a record of citizens with permanent residence in a respective area, including the mayors and secretaries of municipalities (in all other cases). The petition does not allege significant inaccuracies in the information received from DG CRAS in accordance with the procedure described above. Nevertheless, the Constitutional Court strongly emphasizes that the general and insufficiently clear wording of Article 187(1)(7) of the Electoral Code, which fails to exhaustively stipulate all categories of citizens that may be struck off the electoral roll, constitutes a breach of the principle of a State based on the rule of law and calls on the lawmaker to rectify the deficiency with strong implications for the electoral roll that currently does not allow citizens to have their details added to the electoral roll on the day of elections. The prohibitive lists referred to in Article 187(1)(7) of the Electoral Code are not generally available as there is no requirement for their publication in advance. They are made available to the local electoral committees one day before the elections, which means that there is no possibility to rectify manifest errors and omissions.
Secondly, with regard to presidential elections in particular the first sentence of Article 56(1) lays down further grounds for striking a citizen off the electoral roll. The provision concerned applies to those voters who have left Bulgaria in the two months prior to the elections and had not returned by the date on which the rolls were submitted to the CEC, i.e. those voters who one day prior to the elections were still in another country. Voters are struck off the electoral roll by DG CRAS on the basis of information provided by the Ministry of Internal Affairs (first sentence of Article 56(1) of the Electoral Code. The Constitutional Court finds the provision concerned, which effectively provides for striking citizens off the electoral roll on an ex officio basis, cumbersome and deleterious because it is underlined by a presumption that a citizen who has failed to return to Bulgaria 15 days prior to the elections will fail to do so in the remaining fortnight, electing to exercise their right to vote overseas instead. Furthermore, there are sufficient grounds to question the exhaustiveness of the information collected by the Ministry of Internal Affairs on Bulgarian citizens travelling overseas (see Opinion No 1-33907 of 1 December 2011 of the Minister of Internal Affairs). The Constitutional Court strongly emphasizes that it finds the amended provision of Article 56(1) of the Electoral Code manifestly fails to achieve its legitimate aim, which is to preclude the possibility of a voter exercising their right to vote both in Bulgaria and overseas, i.e. more than once. Striking off voters from the electoral roll pursuant to Article 56(1) of the Electoral Code, however, does not impose a prohibition to vote per se because paragraph 2 of the same article allows citizens to be added to the list by the competent electoral committee upon their return in accordance with the procedure set out in Article 46(3) and (4) of the Electoral Code, including on the day of the elections. A refusal on the part of the bodies mentioned in Article 40(1) of the Electoral Code to add a voter to the electoral roll prior to the elections may be appealed before a court of law and a refusal on the part of a local electoral committee (LEC) to do so on the day of elections may be appealed before the higher ranking electoral committee (Article 48 of the Electoral Code). Hence the Constitutional Court finds that citizens were able to exercise their right to vote by visiting the polling station they were registered with on the grounds of permanent residence and presenting a valid document ascertaining their identity to the members of the LEC, unless they were included in the list referred to in Article 187(1)(7) of the Electoral Code. It is therefore the conclusion of the Constitutional Court that the procedure for striking off voters from the electoral roll laid down in Article 56(1) of the Electoral Code, without being unlawful per se or constituting a prohibition to add voters to the electoral roll, is nevertheless unreasonably cumbersome and should be removed from the law to preclude the recurrence of problems arising from its application in practice.
4. Alleged breach of the secrecy of the ballot (Article 10 of the Constitution)
The secret ballot is a fundamental principle enshrined in the Constitution, which has also been reproduced in Article 2(1) of the Electoral Code. The latter stipulates the essential prerequisites that ensure compliance with it. Except for citizens with disabilities (Article 176 of the Electoral Code) all other voters cast ballots solely in voting booths on the premises of polling stations (Articles 174 and 179 of the Electoral Code). After a ballot paper is completed and prior to the vote being cast in the ballot box no modifications are allowed. This includes a prohibition for voters to indicate in any way the candidate for whom they are voting (Article 180(2) of the Electoral Code) and for third parties other than the citizen exercising their right to vote to stand at a distance of less than 3 metres from the voting booth when not vacant (Article 182 of the Electoral Code). The evidence received from the CEC fails to reveal any complaints or information received alleging infringements of the abovementioned requirements. Similarly, the petition also fails to allege specific infringements in this regard.
The petitioners allege that the secrecy of the ballot has been compromised by reason of a failure to ensure compliance with the statutory requirement for the opaqueness of the paper on which integral ballots for election of a president and vice-president were printed. The technical requirements for the paper on which ballots must be printed are set out in Article 162(2) of the Election Code. According to these ballots must be printed on white, opaque paper with a minimum weight. They must also feature certain safeguards against forgery. By adopting a series of decisions the CEC composed of representatives of different political parties and coalitions none of which had a blocking majority (first sentence of Article 15(3) of the Electoral Code) fulfilled its obligation under Articles 26(1)(6) and 167(5) of the Electoral Code by approving model ballots for the presidential elections to be used in Bulgaria and overseas. Presented evidence shows that immediately prior to the first round of the elections the CEC had received only one complaint from an electoral committee questioning the opaqueness of the ballots to which samples received were annexed. In response, acting through the Council of Ministers, the CEC requested an expert appraisal of the model ballots, taking into account that all ballots to be used in the presidential elections had been printed by Multiprint OOD, a company based in Kostinbrod (cf. Letter No 1378 of 28 November 2011 from the Managing Director of the company). The results of the conducted laboratory analysis are set out in Protocol No 171 of 21 October 2011 according to which no significant discrepancies were observed as regards the stipulated statutory requirements for the quality and density of the paper on which the ballots were printed.
Submitted evidence further indicates that subsequently, and more specifically on the days of the first and second round of the presidential elections, the CEC received multiple complaints and information alleging that ballots were not opaque. In summary, the gist of these allegations is that when placed against a natural or an artificial source of light the paper on which the ballots were printed revealed the manner in which each citizen had voted. It is not, however, alleged and likewise no evidence has been presented that indicates that the LEC members tasked with affixing the second stamp on the ballots or ensuring citizens placed the completed and sealed ballot in the dedicated ballot box, took any action to compromise the secrecy of the vote (i.e. created conditions for a controlled vote). The Constitutional Court has received blank ballots from most electoral districts, which fully conform to the standard stipulated by law. For this reason, the Constitutional Court finds that no infringements of the law that compromised the secrecy of the ballot occurred during the presidential elections of a nature that compromises the outcome of the elections.
5. Alleged infringements in counting the ballots and announcing the election results
The de facto petitioners fail to allege any infringements of substantive law on the part of LEC that indicate ballots were not counted accurately, i.e. there are no grounds to assume that the outcome of the vote counting could have altered election results. In itself, a higher count of invalid ballots does not constitute or indicate non-compliance with law nor a failure to take into account the methodological guidelines developed by the CEC. On the one hand, the members of the Local Electoral Committees are members of different political parties. On the other hand, the committees discharge their duties, including those relating to the counting of cast ballots, in the presence of advocates, observers, representatives of political parties, coalitions, initiative committees etc. Hence the law sets out statutory safeguards against manipulating election results by altering the ballot count.
The petition alleges infringements of the law on the part of the Municipal Electoral Committees (MECs). Taking into account that the summaries setting out the outcome of ballot counting on the basis of which the result of the presidential elections is determined are compiled by the Central Election Committee and not by its municipal divisions (Article 254 and 256 of the Electoral Code), the Constitutional Court finds the stated allegations irrelevant to the outcome of the proceedings. The incomplete summaries compiled by the MECs in respect of the districts under their jurisdiction serve a verification function whose purpose is to help the CEC avoid any errors in compiling the summaries based on the original ballots received from each polling station.
The evidence received by the Constitutional Court incontrovertibly shows that following the first round of the presidential elections conducted on 23 October 2011, the Central Electoral Committee calculated the results of the contesting candidates for the office of president and vice-president by including the results shown in 13 protocols setting out the ballot count figures indicated in the summary compiled by the Sofia MEC without the originals of the protocols concerned being available. The computer records compiled by the Sofia MEC, however, warrant the reasonable conclusion that the remaining protocols were physically available and had been submitted to the committee prior to the records in question being compiled in a computerized form. Conducting a physical check of the electoral records kept by the respective municipal administrations is the only means of dispelling any expressed doubts concerning the accuracy of the distribution of the number of votes cast in favour of each pair of candidates running for the office of president and vice-president. However, in the case in hand the Constitutional Court finds that no such check is required. This is so because even if all votes cast at the polling stations concerned (4 342 citizens cast their votes out of a total of 10 631 registered in the respective electoral rolls) were to be counted in favour of another contestant the final outcome of the elections as announced by the CEC in its Decision No 1349 of 26 October 2011 would remain unaltered. As the first round of the presidential elections failed to ensure the victory of any of the runners-up in the presidential contest in line with Article 93(3) of the Constitution, a second round of elections had to be conducted between the presidential pairs led by Rosen Plevneliev and Ivaylo Kalfin.
6. Purported need for direct enforcement of the Constitution
It should firstly be noted that the arguments put forth in the petition in support of the purported unlawfulness of the presidential elections notably include an alleged failure on the part of the administration responsible for conducting the elections to take into account the principle of direct application of the provisions laid down in Article 5(2) of the Constitution. The petitioners maintain that where a provision laid down in the fundamental law contravenes one laid down in a lower-ranking statutory act or bylaw the bodies responsible for application of the law are obligated to enforce the Constitution directly. It is also argued that certain provisions of the Electoral Code effectively negate the rational and contravene the spirit of the fundamental law, which thus fall victim to short-lived, expedient interests of the day. According to the petitioners the provisions concerned should have been derogated and not applied by the bodies responsible for conducting the elections, which should have reverted to and instead applied Articles 10 and 42 of the Constitution. It is finally alleged that the application of the Electoral Code in its current amendment renders the conducted elections unlawful.
The Constitutional Court finds the stated allegations wholly unfounded as they are not supported by the provisions laid down in the Constitution. Articles 10 and 42 of the fundamental law lay down certain principles. However, the application of those principles in practice is ensured by the enactment of electoral laws (ad hoc an Electoral Code). This is fully corroborated by Article 42(2) of the Constitution according to which the organisational arrangements and procedure for conducting elections are to be stipulated by law. The provisions laid down in the Electoral Code make up the body of applicable law, which is binding for all institutions, bodies, natural and legal persons. Furthermore, Article 86(2) of the Constitution proclaims its supremacy, i.e. the obligation of all subjects of law to abide by the principles and provisions laid down therein.
The Constitutional Court further notes that at the beginning of 2011 it received a petition requesting it to appraise the constitutionality of a number of provisions laid down in the newly-enacted Electoral Code and many of them were declared unconstitutional at that time. The remainder of the provisions set out in the Electoral Code, without prejudice to whether their subsequent revision and re-enactment represents a positive step and a sign of goodwill on the part of the lawmaker, comprise a set of applicable rules that were fully in force at the time when elections took place and “law binds all men at all times”. As to the appraisal of the constitutionality of individual provisions laid down in national law, the task at hand falls on the Constitutional Court within its purview and prerogative to conduct constitutional review in the framework of dedicated proceedings following the receipt of petitions from eligible parties and not on the electoral administration (Articles 149(1)(2) and 150(2) of the Constitution). However, constitutional review is beyond the purview of the current proceedings whose aim is to ascertain whether the organisational arrangements, voting and ballot counting as a prerequisite for the election of a Head of State in the recent elections satisfy the material requirements laid down in electoral law.
The application of other pieces of legislation that predate the entry into force of the Constitution would be unwarranted provided the body applying the law ascertains that provisions laid down in the body of antecedent law contravenes the Constitution. Paragraph 3(1) of the Constitution and Constitutional Court Judgment No 10/1994 in Case 4/1994 stipulated: “Antecedent laws are enforced only when they do not contravene the Constitution”. However, the Electoral Code does not fall into the category of antecedent laws and is therefore exempt from the requirement laid down in paragraph 3(1) of the Constitution.
7. Alleged infringement of electoral law arising from the role of the Minister of Internal Affairs
The petitioners allege that during the election campaign the Minister of Internal Affairs, who headed the election campaign of the ruling political party, was on paid leave from the Ministry of Internal Affairs, which constitutes a violation of the Constitution. The co etc. conflict purportedly arises from the fact that the ministry concerned is responsible for keeping public order and ensuring the safety and security of electoral committees and polling stations and of electoral records and ballots, including during their transportation. It connection to this, the petitioners argue that by choosing to use his paid annual leave in the run-up to the elections the Minister failed to oversee the organisational arrangements set up in respect of the elections at the level of the ministry for which he is responsible, which contravenes the principles of the State based on the rule of law and political pluralism.
The Constitutional Court has been asked to appraise a specific occurrence that took place during the election campaign and decide whether that occurrence compromises the legality of the conducted elections. The petition does not set out any specific circumstances such as when the paid leave of the minister concerned commenced; what the principle duties and responsibilities of the incumbent of the position of “election campaign manager” are with regard to each political party; and what actions the implicated minister took during the period in which he was on paid leave.
The meaning of pluralism as defined in the Article 11(3) of the Constitution is well-known. In principle, it denotes the participation of multiple players in the formulation and expression of political will (Article 1193) of the Constitution) in accordance with a procedure and set of rules established by law (Constitutional Court Judgment No 13/2010 in Case No 12/2010). Likewise, the Constitutional Court has given a clear and unambiguous definition of a State based on the rule of law in its Judgment No 1/2005 in Case No 8/2004).
The legal standing of Cabinet ministers is governed by the Constitution and the body of national law. The ministers exercise the functions vested in them by Constitution, which also stipulates their powers and responsibilities. According to Article 110 of the fundamental law a minister must satisfy all requirements for an electable office, including those for Members of Parliament laid down in Article 65(1). Indeed, these requirements essential inasmuch as they are at the core of contemporary democracy, which Bulgaria has embraced. They also dictate that ministerial posts are subject to certain limitations in as much as incumbents are required to meet certain eligibility criteria. To wit, those requirements are identical to the ones that apply to elect Members of Parliament (exhaustively stipulated in Article 113(1) of the Constitution). However, the list of statutory limitations that would render holding the post of Member of Parliament incompatible with law is not sufficiently detailed and the same statutory impediment applies to ministers, despite the provision of Article 113(2) of the Constitution, which allows the lawmaker to introduce more stringent requirements. The legal standing of a Cabinet minister is governed by the rules applicable to “multifaceted legal relations” (Judgment No 12/2010 in Case No 15/2010 on the record of the Constitutional Court). These commence with at the time of appointing a minister whereby legal relations provided for by the Constitution are created into which elements of straightforward employment relations are clearly discernible. According to Article 19a of the Public Administration Act “Minister shall enjoy all rights arising from employment relations save those that are in conflict or are incompatible with their legal standing”. The provision concerned was enacted in 1999. However, regardless several amendments regarding the parties to which it addressed over the years, it remains unclear as to which posts or positions are incompatible with the office of a Cabinet minister.
The petitioners cite Article 104(4) of the Electoral Code as an argument supporting their allegations. According to the provision concerned Cabinet ministers and other senior government officials are not required to take leave when running as candidates in elections – an obligation that applies to all other categories of candidates in elections who hold a public office (article 65(2) of the Constitution and Article 104(1) of the Electoral Code). This warrants the conclusion that a minister remains a minister into whom the powers vested in the office held remain vested, included in election times. This is corroborated by Article 104(4) of the Electoral Code, the provisions (revoked) of the Election of Members of Parliament Act and Judgment No 9/2001 in Case No 9/2001 on the record of the Constitutional Court laying down a binding interpretation of Article 65(2) of the Constitution according to which “Cabinet ministers may continue to exercise the functions vested in their office when registered as candidate in forthcoming elections”. However, that interpretation applies solely in case a minister runs for office in elections and does not preclude him and/or her from making use of their statutory leave during election campaigns, regardless of whether in the capacity of a candidate running for office or not. The matter of whether a Cabinet minister was on leave whilst acting as election campaign manager of one of parties competing in the elections may be examined from the point of view of the specific political responsibility undertaken by each Cabinet minister before the Parliament and hence before the people. However, acting in the stated capacity does not in itself render the conducted elections for President and Vice-President unlawful on the grounds set forth in the petition.
8. Alleged infringement of the law by means of extending the working day of polling stations
The petitioners maintain that the Central Electoral Committee unreasonably prolonged the duration of the election day, which purportedly warrants the conclusion of resulting detrimental and unlawful consequences that invalidate the votes cast during the period by which the working time of polling stations was extended prior to the second round of the elections. The alleged infringements are described as “a significant distortion of election results”. It is further maintained that Article 184 of the Electoral Code and of Article 10 of the Constitution laying down the principle of equality of suffrage were violated.
There is no doubt that by its Decision No 1331 of 23 October 2011 the CEC extended the working hours of polling stations, which remained open longer during the first round of elections. By its Decision No 1336 of the same date the CEC declared the end of the first round of elections at 21:00 hours across Bulgaria. The provisions of Article 184 of the Electoral Code are equally unambiguous. According to the cited provision voters cast their ballots until 19:00 hours and if citizens are still waiting in front of polling stations, voting may continue until 20:00 hours. The Court notes that Article 184 is a part of the main body of the Electoral Code. Its supplementary provisions set out a special rule (paragraph 5) applicable to conducting mixed elections, including presidential and local ones at the same time. That special rule makes it unambiguously clear that the provisions set out in the main body of the Electoral Code apply to a certain type of elections. Indeed, according to the cited paragraph 5 of the Supplementary Provisions, which sets out the rules for mixed elections, the CEC does not have the power to extend the working hours of polling stations. Nevertheless, this is an omission on the part of the lawmaker, which has failed to elaborate special rules applicable to mixed elections.
In its opinion submitted to the Constitutional Court the CEC explains that its decision was underlined by information received from numerous polling stations throughout the country according to which conducting both presidential and local elections on the same day, despite two voting booths and ballot boxes being provided, creates difficulties and slows down the election process as well as that large groups of voters willing to cast ballots are still waiting to do so but are unable to exercise their right in the stipulated time. In light of this, having based its decision on the constitutional right of citizens to vote and taking into account the legal nature of the subjective and unalienable right of citizens to elect a head of State and local authorities, the CEC extended the working hours of polling stations acting in line with the powers vested in it under Article 26(1)(1) of the Electoral Code.
The Constitutional Court accepts the stated position that the purpose of extending the working hours of polling stations was to allow waiting voters to exercise their principal constitutional right to vote. However, it is evident that by doing so the CEC violated a specific provision of the law. In the opinion of the Court the nature of that violation neither compromises nor may alter the outcome of the conducted elections.
Председател: Евгени Танчев