Decision No. 13 of 28 November 2013 on Constitutional Case No. 14/2013
The case was filed by a group of Members of the 42nd National Assembly who challenged the validity of the elections that were held on 12 May 2013 for the 42nd National Assembly in the territory of the Republic of Turkey. The MPs claimed that significant violations had been committed in the course of the elections and these violations invalidate the popular vote. The MPs asked the Constitutional Court to declare invalid the election results in all 86 polling stations that had been opened in the Republic of Turkey and to count out the total of 60,090 valid votes that had been cast for the political parties. On that premise the MPs demanded that the Central Election Commission (CEC) be assigned to rework out the election result and to redistribute the seats in Parliament.
A resolution of 26 September 2013 joined Constitutional Case No. 15/2013 to Constitutional Case No. 14/2013 in view of the partial sameness of the matter of the two cases, viz. contestation of the validity of elections that had been held in the territory of the Republic of Turkey. A motion from a group of MPs who were behind Constitutional Case No. 15/2013 was additionally admitted on its merits; the MPs contested the validity of the parliamentary elections of 12 May 2013 in total and insisted on their complete annulment for reasons like numerous significant and flagrant violations of the Constitution and of the Election Code (EC) in the polling stations countrywide.
The Constitutional Court dismissed the two motions for the following reasons:
А. On the legitimacy of the parliamentary elections and the voting in the polling stations in the Republic of Turkey
In keeping with the Election Code the vote in the Republic of Turkey was organized and implemented by the heads of diplomatic and consular missions of the Republic of Bulgaria in that country who, considering the applications to vote, opened polling stations in the cities where willing voters could exercise their right. The Ad hoc Workgroup that was set up by the Ambassador’s order to prepare and hold the parliamentary election in the territory of the Republic of Turkey did what was required to inform the Bulgarian citizens in that country who may wish to vote about the application procedure and electoral rolls compilation. In abidance by the law-set deadline prior to the Election Day the number of the applications received was communicated to the CEC. The Ad hoc Workgroup advised the Ambassador on the number and locations of the polling stations to be opened and on the candidacies for (regular and alternate) membership in the SECs. A total of 86 polling stations were opened in locations in the proximity of the residence of the voters from the respective electoral roll.
The number of polling stations to be opened abided by Art. 74 of the Election Code and was in proportion to the number of the applications received from willing voters. The polls in the Republic of Turkey opened and closed honoring the law-prescribed local time. The Bulgarian Embassy did not receive any reports of entries into the electoral rolls of persons who were not entitled to vote or who did not possess valid Bulgarian identity documents or who were additionally entered “below the baseline” though they had not filled in a declaration. The appointment of 9-member commissions of the SEC and the installation of two (curtained) polling booths enabled some voting sections to handle 935 and more voters who did vote. All section election commissions (SECs) closed the Election Day at 20.00 hrs. and there was no voting after this hour since everyone wishing to vote in the Republic of Turkey had voted by that time.
The testimony of three expert witnesses who were unanimous in their answers to the Court’s questions was sustained:
1. The names entered in the original electoral rolls significantly outnumber the names of persons who did exercise their right to vote.
2. The number of voters in the Republic of Turkey was 65,241, as per the electoral rolls, whereas the SEC records give 66,186 (i.e. a difference of 975). It was found that in the majority of cases there exists no essential difference between the number on the electoral rolls and the electoral records, and that the polling stations where the names on the records outnumbered the names entered into the electoral rolls were isolated cases. While such differences are negligible to affect the election result, sometimes they may be attributed to unintentional clerical errors by SEC members during the voting formalities.
3. In the majority of cases the entries into the columns Personal Identification Number (PIN) and Identity Document (ID) are properly done. Irregularities are an exception rather than recurrent.
4. Twenty-four polling stations handled a total of 5,699 voters and thus exceeded their assigned capacity for 935. In the opinion of the experts polling stations could have coped with the excess to 935 only if the commission had split into groups rather than operated as one body or if the commission had been illicitly aided by individuals who were not its members.
5. The number of invalid ballot papers significantly exceeds the average number of invalid papers that had been counted in Bulgaria.
6. Signatures were attested to all pages to the additional electoral rolls in sections in the Republic of Turkey to enter additionally and below the baseline the names of voters who turned up on the Election Day.
In summary, the experts concluded that the performance of the SECs in the territory of the Republic of Turkey had significantly improved and practically there had been no violations or irregularities except for sections that handled an excess of 935 voters and for the three sections whose records with the voters’ personal data were incomplete.
Considering the above stated, the motion that challenges the validity of the parliamentary elections in all 86 polling stations in the Republic of Turkey should be dismissed as unsustainable.
The evidence gathered does not support the complaint about the unlawful opening of polling stations in the Republic of Turkey. Polling stations were opened on the basis of CEC decisions concerning the vote outside Bulgaria and on the basis of information that the Ministry of Foreign Affairs had provided. The implicated CEC decisions were not appealed against by “players” in the elections to report law breaches vis-à-vis the establishment and operation of the polling stations.
The Election Day schedule conformed to the EC-set starting and closing times and the 9-member commission constituted the required quorum during the voting even when it split in two in order to honor the schedule and accommodate a mass of voters in excess to 935 by the installation of a second polling booth. The heads of the diplomatic and consular missions of the Republic of Bulgaria in Turkey performed their function to organize and hold the elections, to compile and deliver information about the election returns together with the election stationery. The lawfulness of the counting was guaranteed by the presence of observers and representatives of the parties and coalitions with seats in Parliament.
No proofs have been adduced to confirm the alleged violations of the election process like the additional entries below the baseline of the electoral rolls of names of people who were not entitled to vote or who did not possess Bulgarian identity documents or entries of numbers of expired identity documents or the permission to vote granted to persons who did not possess identity documents. In the few cases of omissions of voters’ personal data – the PIN or the ID – at least one of the two essential elements has been noted.
The complaint about unsigned (unauthenticated) additional pages to the electoral rolls where voters’ names were entered on the Election Day is not tenable either since it appeared that pages had been signed by the commission’s chairman or by a commission member who the chairman had duly authorized, i.e. the attachments were recognized to be an official document that testifies actions executed in the presence of an official.
Alleged double voting by one and the same person and forgery of SEC members’ signatures on the commission’s records have not been proved either. A special device has been developed to detect double vote by a decision of 29 April 2013 while the observers and representative of the parties and coalitions of parties with seats in Parliament sitting as members of the commissions are the safeguard against forgeries of SEC members’ signatures on the commission’s records.
B. On the validity of parliamentary elections held in polling stations in the territory of the Republic of Bulgaria
The Election Code proposes a sufficiently elaborate set of rules and guarantees that the elections will be organized and held in a lawful and democratic way and that the ballot papers will be counted and that the election results will be calculated in a transparent and accurate way to reflect the voters’ political choices. Thereby the Code provides for the option of appeal against the election commissions’ acts and actions and for the option of challenge of their legitimacy by the political parties, coalitions of political parties, nominees aspiring to a seat in Parliament, observers, representatives of political parties, election agents of the nominees, and other “players in the election game” in any stage of the evolving election process. The Election Commissions decisions are appealable against with the relevant higher-ranking Election Commission; an appeal against the CEC decisions may be taken to the Supreme Administrative Court. On the Election Day the political parties, coalitions of political parties and individual candidates (nominees) in the race can see to the lawfulness of the vote casting, vote counting and vote results reporting through their representatives and election agents. Independent observers are entitled, if they wish, to be present in the polling stations throughout the Election Day. Moreover, some members of the election commissions are nominated by the political parties with seats in Parliament and thus provide a guarantee of the transparency and political impartiality of the commissions when they organize and hold the elections. The enumerated guarantees make sure that the election results and the voters’ choices will match. Along with, the result issues from the number of valid ballots cast in all polling stations in and outside Bulgaria, for the party tickets and for independent nominees who have registered in multi-seat constituencies. The only official document that certifies the number of ballots cast for each ticket is the Section Election Commission’s (SEC) record. The primary information from all SEC records determines the final election result with its distribution of seats per tickets and per nominees. The SEC records reflect all applications, complaints and objections regarding the commissions’ doings and decisions throughout the Election Day from members of the commissions, election agents, representatives of political parties and coalitions of parties and observers.
The testimony of the three expert witnesses working on the Constitutional Court’s assignment made the following inferences:
1. In four constituencies where election results were contested, the sum of the valid ballots as per the SEC records absolutely matched the sum in the constituency election commissions’ records. Clerical errors that had been detected in the records of three other Constituency Election Commissions were corrected in the proper law-established procedure and, accordingly, did not impact the computation of the final result.
2. Interventions into the figures in the contested SEC records were attested by the commissions’ members’ signatures in line with the Election Code prescriptions and the Central Election Commission’s methodological guidance. Concerning two polling stations that were cited in the challenge, the claims were seen as imprecise and unproven as the respective SEC records did not contain any remarks, statements or disagreements. The contestation of the results in one polling station was not supported by any proof while the imprecise data about the ballots cast for each political party could not have swayed the final election result. In several polling stations the number of unused ballot papers was mistaken in the SEC records, however, that mistake could not have swung the election result.
The CEC provided the Constitutional Court with the findings of the investigation that had been carried out by DG Civil Registration and Administrative Services at the Ministry of Regional Development to expose cases where the voting was discordant with the Election Code rules, including cases where voters voted twice (or more). The investigation showed that with regard to the parliamentary election on 12 May 2013 in all polling stations in and outside Bulgaria a total of 105 persons voted twice (or more), 71 persons who are not entitled to vote were allowed to vote and none of the attendants assisted more than two voters [with an impairment].The data cited indicate that the breaches were not of a nature to dramatically swing the ultimate election result since the number of such cases was negligibly small in proportion to the voter turnout.
In summary, altogether it was found that the minor omissions or errors in the Constituency Election Commissions’ and Section Election Commissions’ records that the MPs cited in their challenge were not of a nature to swing the ultimate election result.
Premising on the stated facts the challenge of the validity of elections that were held on 12 May 2013 in all polling stations in the Republic of Bulgaria should be dismissed as unsustainable.
The evidence produced could not support the challenge by the groups of MPs who approached the Constitutional Court to report what they saw as numerous significant and gross violations of the Constitution and the Election Code, inefficient organization, errors and unprepared election commissions, blunders in the election stationery that all in all distorted the voters’ choice and to ask the Court to declare the elections invalid in total. Invalidation of elections may be based, first and foremost, on flagrant violations whenever the underlying democratic constitutional principles that are relevant to suffrage (universal, equal and direct suffrage by secret ballot – Art. 10 of the Constitution) have been undermined during the election process. Second, such violations should have been flagrant and recurrent to an extent that they entirely invalidate the election process and the election result in total (Decision No. 5/2013 of the Constitutional Court). For the Constitutional Court to declare parliamentary elections invalid, there should have been two evident and parallel circumstances: gross violations of the Constitution principles relating to the election process and severity of violations to an extent that makes it impossible to know the voters’ real choice. These criteria should apply to the violations that are alleged in the MPs’ challenge and accordingly, should lead to the tenable conclusion vis-à-vis the validity of the contested election for the 42nd National Assembly. The evidence as attached to the challenge does not prove, on the whole, the rightness of the alleged violations of the election process. The violations that the experts’ investigation exposed were neither recurrent nor gross, hence they could not have crucially swung the election result. Regarding the movants’ allegations about serious errors that were made in the compilation of the Constituency Election Commissions’ records and that may lead to the invalidation of the final election result, the expert witnesses’ testimony indicated that the errors and omissions were immaterial and could, sometimes, be attributed to a slip of the pen.