Decision No. 5 of 9 June 2013 on Constitutional Case No. 13/2013
The case was filed by 96 Members of the 42nd National Assembly who asked that the parliamentary elections of 12 May 2013 be wholly declared null and void. The motion contained complaints reporting serious violations of the Constitution and of the Election Code on the eve of the Election Day and on the very Election Day, namely and specifically: illicit canvassing on the Reflection Day and on the Election Day; involvement of poll takers in the canvassing process and their strong attachment to a political party that runs for Parliament; the release by such poll conducting agencies of figures that impacted the social and political trends of the voting process and the choices made; voting outside Bulgaria where the Election Code rules were not observed; noncompliance with the prescriptions of Art. 26, para 1, item 22b of the EC; and vote buying in the course of the election process in a number of constituencies and polling stations.
The Constitutional Court dismissed the motion on the basis of the following arguments:
The Constitutional Court’s pronouncement of elections invalid is the worst possible consequence caused by a multitude of irregularities in the election process. Invalidation of elections can be conditioned only by particularly serious violations whenever the Constitutional Court finds that the election process has been discordant with the underlying democratic constitutional principles that are relevant to suffrage (universal, equal and direct suffrage by secret ballot – Art. 10 of the Constitution) and are flagrant and recurrent to an extent that entirely invalidate the election process and the election result in total. This understanding draws inspiration from the Council of Europe’s Code of Good Practice in Electoral Matters of the European Commission for Democracy through Law (The Venice Commission). Paragraph II, 3.c of the Code reads categorically that the appeal body must have authority to annul elections where “irregularities may have affected the outcome.” In such cases it must be possible to pronounce the entire election result invalid.
The Constitutional Court holds the view that an outcome of this type may issue from the failure to open polling stations; from impediments to the voters’ access to polling stations; from the weakness of measures, if at all, to keep the secrecy of the ballot; from substitution of ballot papers or electoral rolls on the very Election Day to impinge on the voting process; from strong pressure exerted on voters to discourage them from going to the polling stations or to force them to cast ballots for candidatures that are not their choice.
On the basis of the above stated the Constitutional Court deemed that two factors must have preexisted to annul the entire parliamentary election (Art. 66 of the Constitution): gross violations of the electoral process that are relevant to the constitutional principles as set forth in Art. 10 of the Constitution; and violations whose severity is of a nature where it will be impossible to know the electorate’s real choice.
The violations that the MPs alleged should be judged in the context of these criteria just as is the legitimacy of the contested elections.
The first group of violations that the MPs report concern actions of the “free formation and expression of the citizens’ political will.” The MPs stressed that the Reflection Day witnessed and heard intolerable and unprecedented suggestions of a “coup d’État”, “distortion of results” and “demands that the elections be rescheduled”. The MPs held the view that the concept of canvassing in the sense of Art. 133, para 6 of the Electoral Code EC is broader than the legal definition of canvassing in the EC supplementary provisions and includes, inter alia, a negative canvassing against a political opponent.
The MPs insisted that the aired broadcasts of a private TV channel made insinuations that the Political Party Citizens for European Development of Bulgaria (PP GERB) was involved in “an alleged crime that was to swap or add 350,000 ballot papers”. These insinuations were embraced by the PP GERB’s political opponents who referred to them in their political declarations that were read against the background of boards featuring the names of the parties that they represent and that run in the elections. Drawing solely on a press release from the Prosecutor’s Office reporting pretrial proceedings that were initiated against an unknown perpetrator, a large number of media disseminated negative information about natural and legal persons. Reciprocally, all broadcasters and printed media made coverage of the insinuations on the very Election Day and thus the insinuations reached voters whose number cannot be worked out, in and outside Bulgaria. In the opinion of the movants this circumstance negatively impacted the voter turnout as practically half of the Bulgarian eligible voters could not exercise their fundamental right, suffrage, in a normal and calm way.
To judge the legitimacy of the elections in the meaning of Art. 66 of the Constitution in the context of alleged illicit canvassing, the Constitutional Court was guided by § 1, item 21 of the EC Supplementary Provisions. Inasmuch as in the meaning of the Election Code canvassing is defined as “an appeal to support a nominee, a party or a coalition” and that “the name and the emblem of a party or a coalition of parties printed on items that don’t appeal for support shall not be seen as canvassing in the sense of this Code”, the Court concluded that some of the MP’s allegations of unlawful canvassing on the Reflection Day are unsustainable if the Election Code is to be applied. The Constitutional Court cannot agree to a different broader content of the concept “canvassing” and is locked by the Lawmaker’s will that was worded in the legal definition of § 1, item 21 of the EC Supplementary Provisions. In the examination of the case the Court judged the validity of the elections and therefore, was bound to apply the EC texts in a way that honors the substance that the Lawmaker has put in them. Latitudinarian interpretation of the concept “canvassing”, as suggested by the movants, is unacceptable.
The movants’ attempt to justify in a supplementary position that in fact they claimed “a direct violation of the Constitution norms” and not a breach of the Election Code by means of “insinuations” shall not exempt the Constitutional Court of the obligation to rule on the legitimacy of elections on the basis of the EC prescriptions. Moreover, Art. 133, para 6 of the Election Code does not outlaw discussions on relevant matters and the right of the society to obtain information which is directly pertinent to the public at large even on the Reflection Day or on the Election Day.
Whenever the Central Election Commission established violations of Art. 133, para 6 of the EC, sanctions were imposed on such violations. Breach of the prohibition of canvassing in the sense of § 1, item 21 of the Election Code is an administrative breach. It is true that different allegations were multiplied by all media and that enabled some representatives of political parties to take advantage of this situation in the pursuit of the election results that they desired. If the doings of certain media or of certain representatives of political parties constituted illicit canvassing on the Reflection Day, such doings should have been sanctioned by the CEC in the procedure that the Election Code provides for. The evidence attached to the case shows that the CEC found administrative breaches and initiated penal administrative proceedings on which it ruled.
The Court concluded that there exist no objective criteria by which it may be judged whether a violation, if at all, of the canvassing rules on the Reflection Day has impacted the election returns. There is no way to know whether the alleged violations encouraged the people entitled to vote to go to the polling stations or discouraged them from doing so. The cause-and-effect correlation of canvassing and the election returns cannot be subjected to legal instruments in a process whose results may constitute evidence to the Constitutional Court. There is no way to know whether the election returns would have been different in the event of non-commission of the violations that are alleged in the challenge. As the Constitutional Court has already concluded in its Decision No. 4/1997 on Constitutional Case No. 29/1996, “for the voter’s will to be manifest, he or she should have made their choice for who to vote and should have had the freedom of mind to form this choice.” The same Constitutional Court’s decision stressed that the voter’s final choice is “primarily inspired by thought and emotion”. Thought and emotion don’t lend themselves to detection by legal instruments in the election process where it is only the ultimate result that matters.
The MPs’ claims that the actions that are described in the first point of the challenge substantially decreased the voter turnout cannot be impartially assessed by the Constitutional Court. There is no logic why the Constitutional Court should accept certain forecasts as plausible and discard other.
The circumstance that the Prosecutor’s Office circulated a press release to inform the media and the general public is not seen as an involvement in the vote or as a non-observation of the prohibition against canvassing. The Prosecutor’s Office is bound to discharge its duty regardless of ballot which essentially is a political process. Public interest has compelled the Prosecutor’s Office to make a statement that was released a few hours after the initial communications to the media to report, on the basis of the evidence that had been gathered, about bales of ballot papers that had been seized in a printing house in the town of Kostinbrod. The Court held the view that had it not been for the press release, the public reaction might have escalated to make suspicions fall on some public institutions and on the vote as a whole. In fact the reaction of the Prosecutor’s Office significantly calmed the public and showed that the situation was not an emergency since the competent authorities were performing the duty that they are entrusted with under the Constitution and the laws.
The MPs’ understanding that non-observation of the prohibition against canvassing on the Reflection Day leads, in addition to penal administrative liability for the perpetrators, to invalidation of the election results (Art. 66 of the Constitution), in practical terms implies that there will never be legally valid elections in the Republic of Bulgaria if any of the runners in the election race or any of the media break the law on the Reflection Day.
The second point of the challenge draws the conclusion that pollster responses were intentionally misconstrued for the sake of certain political parties and that these responses were deliberately exploited to inspire, through the media, insinuations whose target was the voters. The Constitutional Court agreed that it will discuss neither the conclusion nor the allegations on which this conclusion draws since the movants themselves pointed out that the matter was “legal, having in mind abidance by the Constitution and the Election Code.”
The third point of the challenge refers to alleged violations in the vote abroad, viz. to applications to vote by applicants who are not entitled to vote; applications that violate the CEC rules; illicit membership in a section election commission; irregularities in the compilation of records in ten section election commissions; a great number of voters whose names were entered in the electoral rolls in poling stations predominantly in the Republic of Turkey and a suspiciously large number of voters who cast their ballot papers in some polling stations in Turkey.
The Constitutional Court concluded that none of the violations mentioned, separately or cumulatively, can, even if they were proved, make up an irregularity that will justify the invalidation of elections altogether. Alleged violations could be verified and discussed by the Constitutional Court only in the context of a challenge of the election of individual MPs; however, the MPs who approached the Constitutional Court did not do that. What they asked for was that the Constitutional Court should annul the election of all Members of the 42nd National Assembly. The Constitutional Court is bound by the provision of Art. 22, para 1 of the Constitutional Court Act and shall rule only on the motion as presented. This is explicitly stated in the Constitutional Court’s Decision No. 2/2010 on Constitutional Case No. 10/2009.
The fourth point in the MPs’ challenge touches on violations in the maintenance of the CEC register of complaints and on delays in reporting four communications of violations. Essentially, these were communications from citizens who lodged them on the Reflection Day and on the Election Day and were reported to the CEC.
The Election Code does not set a binding deadline for the CEC to pronounce on complaints it has received except on complaints against decisions and actions of election commissions at constituency, municipality and section level (Art. 26, para 1, item 8, Art. 29, para 3 and Art. 33, para 3 of the Election Code). Since the cases that are mentioned in the challenge are not covered by this hypothesis, the CEC is not bound to immediately consider them. There has been no violation of the Election Code by the CEC when it made a pronouncement on the complaints after the Election Day as the nature of the signals calls for an operational time to make the check and take the decision.
The MPs’ allegation that the CEC register of complaints has not been properly kept in line with the requirements in Art. 26, para 1, item 22b of the Election Code is not be agreed with. The cited EC provision stipulates the CEC’s obligation to open and maintain a computerized public register of the complaints that the Commission has received and of its decisions but does not prescribe any requirements. Such a register was established by the CEC Decision No. 2185-НС of 21 March 2013.
The Election Code reads that the control on the legitimacy of the CEC decisions and actions shall be exercised by the Supreme Administrative Court and shall be beyond the Constitutional Court’s competences.
The last point in the challenge concerns the initiation and completion of criminal proceedings against vote buying and an investigative reporter’s story about that.
Following the criminalization of the “vote buying” in 2006 and the subsequent sophistication of the criminal law to that effect, over the past years the number of investigations and verdicts that draw on the relevant texts of Chapter Three, Section 3 of the Criminal Code remained steady.
The website of the Prosecutor’s Office of the Republic of Bulgaria shows that as of 27 May 2013 a total of 70 pretrial proceedings were initiated against crimes in the election process. The purpose is to enable criminal jurisdiction against perpetrators of crimes. Criminal liability involves primarily extortion, offer, giving and taking of bribe as an incentive to go to the polling station while it does not, as a rule, presuppose that a voter will exercise his or her voting right against their will. The timely initiation and conclusion of pretrial proceedings against crimes against suffrage is an indication of the Prosecutor’s Office efficient work rather than a manifestation of a particularly significant irregularity in the very election process. On a separate track, the scale of crimes investigated and punished (even if every crime received a final verdict of guilty) wouldn’t have impacted the conclusive election returns to an extent to allow annulling the elections for the 42nd National Assembly.