Restrictions on voting rights based on a residence criterion and exercise of the right to vote for non-resident citizens
III. RELEVANT WORK OF THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW 91. At its 51 st and 52 nd sessions on 5 and 6 July and 18 and 19 October 2002, the Commission European for Democracy through Law ( the Venice Commission) adopted its guidelines in electoral matters and an explanatory report on those guidelines. These two documents together constitute the Venice Commission ’ s Code of Good Conduct in Electoral Matters, which was approved by the Parliamentary Assemblée and the Congress of Local and Regional Authorities of the Council of Europe in 2003. 92. The relevant parts of the Code read as follows : Guidelines “ 2. Equal suffrage Equal suffrage entails : ... equal voting rights ...; ... equal voting power ...; equal opportunities ... 3.3. An effective system of appeal a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible. b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals. c. The appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). Neither the appellants nor the authorities should be able to choose the appeal body. d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections. e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned. f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections. g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance). h. The applicant ’ s right to a hearing involving both parties must be protected. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION 93. Mr Riza and the DPS alleged that the annulment of the election results in 23 polling stations had amounted to an unjustified infringement of their right to stand for elections as guaranteed by Article 3 of Protocol No. 1 to the Convention. Under the same provision, the other 101 applicants (whose names are appended) alleged that the annulment of their votes had amounted to a violation of their active electoral rights. Further relying on Article 13 of the Convention, Mr Riza and the DPS submitted that domestic law had provided them with no remedy capable of redressing the alleged violation of their rights. 94. The Court observes from the outset that a distinction should be drawn between the present case and the case of Grosaru v. Romania (no. 78039/01, §§ 55-56, ECHR 2010), in which the post -electoral dispute involving the applicant had never been assessed by a court. In that case the Court conducted a separate examination of the complaint under Article 13. On the other hand, in cases concerning post -electoral disputes where domestic law entrusted consideration of such disputes to the judicial courts, the Court has opted for addressing the subject matter solely from the angle of Article 3 of Protocol No. 1 ( see Kerimova v. Azerbaijan, no. 20799/06, §§ 31-32, 30 September 2010, and Kerimli and Alibeyli v. Azerbaijan, nos. 18475/06 and 22444/06, §§ 29 and 30, 10 January 2012 ). 95. In the present case, the examination of the electoral dispute was assigned to the Constitutional Court, which delivered a final judgment. In the light of the specific facts of the case, and as it proceeded in the Kerimova and Kerimli and Alibeyli judgments ( cited above ), the Court considers that no separate issue arises under Article 13 of the Convention. It will, however, take into account the specific features of the proceedings conducted before the Bulgarian Constitutional Court in order to analyse the complaints under Article 3 of Protocol No. 1, which provides : “ The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. ” A. Admissibility ... 2. Compliance with the other admissibility criteria 109. The Government contested the victim status of Mr Riza, the DPS and the other 101 applicants. 110. They submitted in particular that Mr Riza had stood in the 2009 general elections as a party candidate in a multiple-member constituency in Bulgarian territory where parliamentary seats had been allocated according to the proportional system. Bulgarian voters living abroad, particularly in Turkey, had voted not for lists of candidates put forward by the political parties but for the parties themselves. Thus electors who had voted for the DPS in the polling stations in question had not voted explicitly for Mr Riza. Accordingly, the latter could not have validly claimed that the decision which had led to the annulment of the votes cast for his party in 23 polling stations in Turkey had had a direct negative impact on his right to stand in the general elections. 111. The Government added that the DPS also could not claim to have been the victim of a violation of its right to stand in elections, since it had taken part in the election under the same conditions as all the other parties and coalitions. By actively participating in the country ’ s political life and the elections, the party had implicitly agreed to obey the rules on the apportionment of seats and not to take advantage of any irregularities occurring during the voting procedure. The impugned judgment of the Constitutional Court had noted and remedied just such irregularities, and that decision had led to the annulment of the election of candidates from other political parties. Thus the impugned measure had not been aimed exclusively at the DPS and had not been implemented disproportionately and tendentiously. 112. As regards the other 101 applicants who voted in polling stations where the results were annulled by the Constitutional Court, the Government submitted that their voting rights had in no way been infringed. They pointed out in particular that the State had made the necessary arrangements to enable those concerned to cast their votes in their country of residence. The applicants ’ votes had not been declared null and void by the Constitutional Court ’ s judgment: the latter had been delivered in the framework of proceedings which had provided all the necessary safeguards against arbitrariness, and had merely deducted from the final outcome of the elections all the votes cast in the polling stations where the 101 applicants had voted on grounds of non-compliance with the legal obligation for the leaders of electoral committees to sign the additional lists of voters. Accordingly, the Constitutional Court ’ s judgment had not directly or sufficiently seriously infringed those applicants ’ active electoral rights. 113. Relying on the same arguments, the Government submitted, in the alternative, that the application lodged by the 101 electors should be rejected as being incompatible ratione materiae, manifestly ill-founded, and/or, pursuant to Article 35 § 3 (b) of the Convention, for lack of significant disadvantage. 114. The Court notes that all those objections can be summed up in a single plea disputing the applicants ’ victim status. It considers that that question is closely connected with the very substance of the complaints raised by the applicants under Article 3 of Protocol No. 1. It therefore holds that that objection should be joined to the merits of the complaints submitted by Mr Riza, the DPS and the other 101 applicants. ... B. Merits 1. The parties ’ submissions (a) The applicants 116. The applicants alleged that the judgment delivered by the Constitutional Court on 16 February 2010 had given rise to an unjustified infringement of their rights as secured under Article 3 of Protocol No. 1. 117. Mr Riza submitted that he had stood in the 2009 general elections as a candidate on the DPS list in the 8 th multiple-member constituency in Dobrich. Following the elections he had been declared elected to the National Assembly, and his party, the DPS, had been represented by 38 deputies in the national Parliament, 33 of whom had benefited from the proportional allocation of seats. The impugned judgment of the Constitutional Court had subsequently modified the election results : the DPS ’ s total was reduced by 18, 140 votes, which had led to the loss of one of its seats, Mr Riza ’ s, in the national Parliament. Mr Riza and the DPS considered that that situation amounted to an interference with the exercise of their right to stand in general elections. 118. The other 101 applicants had exercised their voting rights during the Bulgarian general elections. They had chosen to vote in 17 of the polling stations opened in Turkish territory. The Bulgarian Constitutional Court had, by its judgment of 16 February 2010, annulled the voting in 23 of the polling stations in Turkish territory, including those in which the applicants had voted. Their votes had thus been annulled. The 101 applicants considered that that situation amounted to an interference with the exercise of their right to participate as voters in the general election. 119. The applicants submitted that the decision -making process which had led to the modification of the election result had lacked adequate safeguards against arbitrariness. The procedure used by the Constitutional Court to reach its decision had been designed for assessing the constitutionality of legislation enacted by Parliament : the procedure had been completely unsuited to the assessment of an electoral dispute and, moreover, the regulations governing it had been defective. In the instant case, the precise subject matter of the dispute had not been determined from the outset of the proceedings, having only been established when the Constitutional Court had delivered judgment. The fact that the Constitutional Court had rejected all the appellants ’ arguments put forward one by one, but decided to annul the voting in in 23 polling stations because of formal defects which had been mentioned for the first time in the proceedings by an expert report, at the initiative of the experts in question, revealed a lack of clarity and foreseeability in that regard. The appellants had thus been exempted from the obligation to present evidence of the irregularities allegedly committed in the polling stations in question. The Constitutional Court had appropriated the power to investigate and to adjudicate ex officio on compliance with the overall criteria governing the fairness of voting in all the polling stations in which the Bulgarian citizens living in Turkey had voted. 120. The proceedings before the Constitutional Court had not been adversarial. Neither the DPS nor Mr Riza had been parties to the proceedings in spite of their express requests to that effect and despite the fact that, in their view, the dispute had concerned them directly. The only document in the case file to which they had had access was the initial statement of claim, which had been transmitted to them by the DPS deputies in the National Assembly. Those applicants had had no access to the other contents of the case-file, the additional arguments set forth by the appellants, the evidence gathered during the proceedings or the factual and legal issues discussed before the Constitutional Court. They had been deprived of any opportunity to defend their rights and legitimate interests in the framework of the proceedings. Furthermore, domestic law provided no remedy against the impugned judgment of the Constitutional Court. 121. The DPS, Mr Riza and the other 101 applicants submitted that the irregularities in the voting procedure noted in the judgment of the Constitutional Court had been minimal and should not have led to the annulment of the votes cast in the polling stations in question or of the voting procedure itself. The Constitutional Court had failed to consider whether the impact of the irregularities noted had been sufficiently serious to require the annulment of the voting in the 23 polling stations. 122. The applicants considered that none of those irregularities had pointed to any kind of electoral fraud. The Electoral Law did not require the chair and the secretary of the local electoral committee responsible for an out-of-country polling station to sign at the bottom of the list of voters registered on election day. Such a requirement applied to the “ additional lists ” drawn up solely in polling stations in the national territory. That was why almost all the lists of voters drawn up on election day in the polling stations in Turkey had not been signed. Moreover, the same requirement had not been complied with in polling stations in the national territory, although, according to the applicants, that had not affected the validity of the voting procedure in those stations. That being the case, the Constitutional Court ’ s affirmation that the signatures in question were a fundamental and obvious element for the validity of the voting lists had been completely arbitrary. 123. The applicants submitted that the electoral documents required for calculating out-of-country electoral results were the minutes of voting signed by the members of the local electoral committee and the diplomatic telegram sent by the Bulgarian representations in the country concerned. They explained that those two documents contained information on the number of persons voting, the number of spoiled votes and the number of votes cast for each party. Enclosed with the list of voters comprising identification data on and the signature of each person voting, as well as the ballot papers in the ballot box, those documents had been sufficient to detect any instance of electoral fraud. All those documents had been available for the 23 polling stations and no electoral fraud had been discovered. 124. The applicants added that the Constitutional Court had noted two further irregularities : the absence of minutes or of the first page of such minutes. In fact it was not the first but the second page of the minutes which provided the information required to calculate the results, that is to say the number of persons voting, the number of valid ballots, the number of spoiled votes, and the apportionment of votes among the different political parties. In the event that neither of the two pages of the minutes had been placed on file, the diplomatic telegram reproduced the same data. Those documents had indeed been filed away in respect of the 23 polling stations in question. 125. The Constitutional Court had itself acknowledged that the votes cast in the 23 polling stations had been valid, but had decided to deduct them from the election results owing to omissions which had been attributable neither to the voters, including the 101 applicants in the present case, nor to Mr Riza and the DPS. Furthermore, the media had reported many cases of similar omissions, such as the accidental destruction by maintenance staff at the Bulgarian Embassy in Washington of all the electoral documents from the polling stations operating in US territory. The lawfulness of the voting procedure in US territory had never been challenged, and the votes cast in those polling stations had been taken into account for the apportionment of seats in the National Assembly. 126. For those reasons, the applicants invited the Court to find that the impugned interference with the exercise of their respective rights to participate in the general elections as candidates / voters had not pursued any legitimate aim and had been totally unjustified under Article 3 of Protocol No. 1. ( b) The Government 127. The Government first of all disputed the existence of an interference with the exercise by the applicants of the rights secured under Article 3 of Protocol No. 1. 128. They pointed out that the DPS had put up numerous candidates for the 2009 general elections in single- and multiple-member constituencies, and that Mr Riza had been included in that party ’ s list of candidates for the 8 th multiple-member constituency. They denied that there had been any direct link between the annulment of the voting in the 23 polling stations in Turkish territory and the annulment of Mr Riza ’ s parliamentary seat. The Government considered that that decision had not affected the DPS ’ s political weighting, since it was still the third biggest political party in Bulgaria in terms of number of deputies elected to the National Assembly. 129. As regards the other 101 applicants, the Government considered that they had exercised their voting rights and that their votes had not been annulled by the Constitutional Court. On the contrary, the Constitutional Court had emphasised that those votes had been valid but had nonetheless not been counted owing to serious negligence on the part of the members of the electoral committees responsible for the polling stations in which the applicants had voted. 130. In the alternative, the Government submitted that even supposing there had been an interference with Mr Riza ’ s and the DPS ’ s passive electoral rights and with the other applicants ’ active electoral rights, that interference had been justified in the light of the arguments set out below. 131. The Government thus explained that the right to vote and the right to stand for election were guaranteed by the Bulgarian Constitution and that at the material time the voting procedure had been governed by the 2001 Electoral Law. Seats in the National Assembly had been allocated on the basis of all valid votes cast. That being the case, it had been vital for the lawfulness of the election to take into account only the valid votes in calculating the election results. In the Government ’ s view, that had been the only way to guarantee the protection of both the right to vote and the right to stand for election, inasmuch as it had ensured that deputies were elected to the national Parliament with the genuine support of the electorate. 132. The Government added that the domestic courts had applied Bulgarian electoral legislation in a clear and foreseeable manner. They stated that the judgment of the Constitutional Court disputed by the applicants had been geared to ensuring compliance both with electoral legislation and with the lawfulness of the election. 133. The Government further pointed out that according to the Electoral Law the Constitutional Court was the body competent to examine the lawfulness of the election of deputies. In the framework of its competences and pursuant to the above-mentioned legitimate aims, the Constitutional Court had conducted very careful scrutiny of the conditions for ensuring the regularity of voting in the polling stations operating in Turkish territory. It had ordered two expert assessments and examined their findings, and had received and taken into account the observations of all the parties concerned. Referring to the overall evidence amassed, it had noted serious omissions from the election material, particularly the lists of voters and the minutes of voting, which it submitted had affected the lawfulness of the voting procedure and necessitated the exclusion of the votes cast in 23 polling stations, including the 17 stations in which the 101 applicants in the present case had voted. The modification of the election results had led to a redistribution of parliamentary seats and the annulment of the seats of three deputies belonging to different political formations, that is to say the DPS, the RZS party and the Blue Coalition. The impact of the modification of the election results had thus been apportioned among several parties taking part in the general elections, and neither the DPS nor Mr Riza could validly claim that the impugned judgment had had the effect of exclusively infringing their rights and legitimate interests. 134. The Government submitted that there had been no sign of arbitrariness in the manner in which the judgment in question had been adopted and reasoned. The Constitutional Court had merely applied domestic electoral legislation. The alleged interference with the exercise of the rights to vote and to stand for election had not violated the substance of those rights; it had pursued a legitimate aim and observed a proper proportionality between the general interest and the applicants ’ rights. 135. The Government added that the Bulgarian authorities were determined to fight electoral practices that were incompatible with democracy, making them liable to criminal prosecution. Those practices included vote -buying and “electoral tourism ”, which consisted in organising transport out of the country for a large number of voters in order to skew the election results. 2. The Court ’ s assessment (a) General principles emerging from the Court ’ s case-law 136. The Court reiterates that Article 3 of Protocol No. 1 enshrines a characteristic principle of democracy and is accordingly of prime importance in the Convention system ( see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113, and Ždanoka v. Latvia [GC], no. 58278/00, § 103, ECHR 2006 ‑ IV). The role of the State, as ultimate guarantor of pluralism, involves adopting positive measures to “organise” democratic elections “ under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature ” ( see Mathieu-Mohin and Clerfayt, cited above, § 54). 137. Article 3 of Protocol No. 1 does not create any obligation to introduce a specific system such as proportional representation or majority voting with one or two ballots. The Contracting States have a wide margin of appreciation in that sphere. Electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other: on the one hand, to fairly accurately reflect the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. In these circumstances the phrase “conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” implies essentially the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election. It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate “wasted votes” ( see Mathieu-Mohin and Clerfayt, cited above, § 54). 138. According to the case-law of the Court, the words “free expression of the opinion of the people” mean that elections cannot be conducted under any form of pressure in the choice of one or more candidates, and that in this choice the elector must not be unduly induced to vote for one party or another. The word “choice” means that the different political parties must be ensured a reasonable opportunity to present their candidates at elections ( see Yumak and Sadak v. Turkey [GC], no. 10226/03, § 108, ECHR 2008). The Court has also ruled that once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic order ( see Lykourezos v. Greece, no. 33554/03, § 52, ECHR 2006 ‑ VIII). 139. Article 3 of Protocol No. 1 also covers subjective rights, including the right to vote and the right to stand for election (see Mathieu-Mohin and Clerfayt, cited above, §§ 46-51). 140. The right to vote, that is to say the “ active ” aspect of the rights guaranteed by Article 3 of Protocol No. 1, is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion ( see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 59, ECHR 2005 ‑ IX). Clearly, Article 3 of Protocol No. 1 does not provide for the implementation by Contracting States of measures to allow expatriates to exercise their right to vote from their place of residence. Nevertheless, since the presumption in a democratic State must be in favour of inclusion, such measures are consonant with that provision ( see Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 71, ECHR 2012). 141. As regards the passive aspect of electoral rights, it is not restricted to the mere possibility of standing for election: once elected, the person concerned is also entitled to sit as a member of parliament ( see Sadak and Others v. Turkey (no. 2), nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 33, ECHR 2002 ‑ IV, and Lykourezos, cited above, § 50 in fine ). Moreover, the Court has accepted that, when electoral legislation or the measures taken by national authorities restrict individual candidates ’ right to stand for election through a party list, the relevant party, as a corporate entity, could claim to be a victim under Article 3 of Protocol No. 1 independently of its candidates ( see Georgian Labour Party v. Georgia, no. 9103/04, §§ 72-74, ECHR 2008). 142. The Court then reiterates that the rights secured under Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere ( see Mathieu-Mohin and Clerfayt, cited above, § 52; Ždanoka, cited above, § 103; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). However, it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate ( see Mathieu-Mohin and Clerfayt, cited above, § 52, and Ždanoka, cited above, § 104). 143. The Court must ensure that the decision-making process on ineligibility or contestation of election results is accompanied by criteria framed to prevent arbitrary decisions. In particular, such a finding must be reached by a body which can provide a minimum of guarantees of its impartiality. Similarly, the discretion enjoyed by the body concerned must not be exorbitantly wide; it must be circumscribed, with sufficient precision, by the provisions of domestic law. Lastly, the procedure for declaring a candidate ineligible must be such as to ensure a fair and objective decision and prevent any abuse of power on the part of the relevant authority ( see Podkolzina, cited above, § 35; Kovach v. Ukraine, no. 39424/02, §§ 54-55, ECHR 2008; and Kerimova, cited above, §§ 44-45). The Court also reiterates that under the subsidiarity principle it is not its task to replace the domestic courts in assessing the facts or interpreting domestic law. In the specific context of electoral disputes, it is not called up to determine whether the irregularities in the voting procedure complained of by the parties amounted to violations of the relevant domestic legislation ( see Namat Aliyev v. Azerbaijan, no. 18705/06, § 77, 8 April 2010). Its role in determining whether there was an unjustified interference in “ the free expression of the opinion of the people in the choice of the legislature ” is confined to establishing whether the decision given by the domestic court was arbitrary or manifestly unreasonable ( see Babenko v. Ukraine (dec.), no. 43476/98, 4 May 1999; Partija “ Jaunie Demokrati ” and Partija “ Musu Zeme ” v. Latvia (dec.), nos. 10547/07 and 34049/07, 29 November 2007; and Kerimli and Alibeyli, cited above, §§ 38-42). ( b) Application of those principles to the present case i. The existence of an interference with the exercise of the rights secured under Article 3 of Protocol No. 1 144. The Court considers that it should first of all seek to establish whether the situation complained of by the applicants amounts to an interference with their rights as guaranteed by Article 3 of Protocol No. 1. - As regards the active electoral right 145. The Court observes that at the material time the 101 applicants, whose names are appended to the present judgment, lived in Turkey. They voted in the 5 July 2009 general elections in 17 of the polling stations in Turkish territory. Their votes were initially taken into account in calculating the 4 % electoral threshold. The votes cast by the applicants for the six successful parties were then taken into account in apportioning seats among those political parties at the national level .... 146. In its judgment of 16 February 2010, which is the subject of the present application, the Bulgarian Constitutional Court decided to annul the elections in 23 polling stations opened by the Bulgarian diplomatic representations in Turkish territory and to deduct from the election results the votes cast in those polling stations, to a total of 18,358 votes. Those votes included those cast by the 101 applicants whose names are appended, as the 17 polling stations in which they had voted had been among the 23 in which the elections were annulled. 147. The Government submitted that the situation in question did not amount to an interference with the exercise of the 101 applicants ’ voting rights : they argued that the latter had exercised their right to vote, but that their votes had not been counted in the allocation of seats in the National Assembly because there had had been serious irregularities in the voting procedure in their polling stations. The Court begs to differ. 148. The active electoral right as guaranteed by Article 3 of Protocol No. 1 is not confined exclusively to the acts of choosing one ’ s favourite candidates in the secrecy of the polling booth and slipping one ’ s ballot paper into the box. It also involves each voter being able to see his or her vote influencing the make-up of the legislature, subject to compliance with the rules laid down in electoral legislation. To allow the contrary would be tantamount to rendering the right to vote, the election and ultimately the democratic system itself meaningless. 149. Those considerations lead the Court to note that the impugned judgment of the Constitutional Court did have a direct impact on the voting rights of the 101 applicants in question. Their votes were excluded from the election results : they were not taken into account in calculating the 4 % electoral threshold, and those of the 101 votes which were cast for the first six parties in the elections were not taken into account in apportioning seats among those parties at the national level .... - As regards the passive electoral right 150. The Court observes that Mr Riza and the DPS stood in the 5 July 2009 Bulgarian general elections: the DPS was registered by the Central Electoral Commission as a party participating in the election, put up several candidates in the multiple- and single-member constituencies in Bulgarian territory and was included on the ballot paper specially designed for voting outside the national territory; Mr Riza was in second place on his party ’ s list of candidates in the 8 th multiple-member constituency in Dobrich (see paragraph 14 above). After the initial publication of the election results and the first allocation of seats on 7 July 2009, the DPS obtained 33 seats in the National Assembly under the proportional system, and five further seats under the majority system ( see paragraph 20 above ). Mr Riza was not elected to Parliament ( see paragraph 21 above ). However, following a Constitutional Court appeal lodged by a candidate for another political party, which was ultimately successful, a second proportional distribution of seats was organised: the DPS lost one of its two seats in the 19 th multiple-member constituency but obtained a second seat in the 8 th multiple-member constituency, which was assigned to Mr Riza as the second candidate on his party ’ s list in that constituency (ibid.). Accordingly, as at 12 October 2009 the DPS ’ s score in the elections totalled 610, 521 votes and the party had 38 deputies in Parliament, including Mr Riza. The latter was subsequently elected to one of the standing committees in the National Assembly. 151. The Constitutional Court judgment affected the situation of those two applicants, who had stood for the general election in question. The DPS had 18,140 votes deducted from its total electoral score. The ensuing redistribution of seats led to changes in the composition of the national Parliament : the DPS lost one parliamentary seat to the political party which had won the elections under the proportional system, and Mr Riza lost his mandate as a deputy ( see paragraphs 48 and 49 above ). Thus the applicant party ’ s electoral score under the proportional system fell by some 3 %; its parliamentary group was reduced from 38 deputies to 37, and Mr Riza forfeited his position as a representative in the National Assembly. - The Court ’ s conclusion 152. In the light of the above facts, the Court considers that the situation complained of by the applicants amounts to an interference with the exercise of their respective rights to vote in and stand for general elections as secured under Article 3 of Protocol No. 1. It also considers that the same arguments require it to reject the Government ’ s objection regarding the applicants ’ lack of victim status ( see paragraph 114 above ). ii. Justification for the interference in question 153. The Court must therefore satisfy itself that the interference in question did not limit the applicants ’ active and passive electoral rights to the extent of affecting their very substance and depriving them of their effectiveness, that it pursued a legitimate aim and that the means used were not disproportionate to the aim pursued. 154. The Court notes that the parties disagree as to the purpose of the impugned measures. The applicants considered that the annulment of the voting in 23 out-of- country polling stations had not pursued any legitimate aim, whereas the Government submitted that the scrutiny conducted by the Constitutional Court had been geared to ensuring compliance with electoral legislation. 155. The Court observes that the proceedings before the Constitutional Court which led to the judgment complained of by the applicants were based on Article 149, ( 1 ) ( 7 ) of the Constitution and section 112 of the 2001 Electoral Law. Those provisions allowed any person standing in the general elections to contest the lawfulness of the election of deputies to the National Assembly .... Such disputes often concern compliance with the rules on voting and vote-counting in one or more polling stations, and may lead to the invalidation of some of the votes and a change in the total number of votes obtained by each individual candidate or political party. In proportional election systems, changing the electoral score of political formations, sometimes just in one single polling station, can lead to a redistribution of parliamentary seats and an increase or decrease in the number of seats allocated to the various parties or coalitions. That is exactly what happened in the present case. The impugned proceedings were brought by the President of the RZS political party and three of its candidates, seeking to contest the lawfulness of the election of seven DPS deputies under the proportional system in the framework of the Bulgarian election system. The appellants complained of several irregularities in the voting procedure in the 123 polling stations in which Bulgarian citizens living in Turkey had exercised their voting rights ( see paragraph 22 above ). Accordingly, the Court accepts that the proceedings before the Constitutional Court had the legitimate aim of ensuring compliance with electoral legislation and therefore the lawfulness of the voting and the election results. 156. The Court considers that the next step must be to establish whether the decision-making process was surrounded by adequate safeguards against arbitrariness. In doing so it must ascertain whether that process complied with the requirements as set out in its well-established case-law ( see paragraph 143 above ). 157. The applicants submitted that the proceedings before the Constitutional Court had been unsuited to the assessment of post -electoral disputes. They observed that the application of the procedural rules laid down in the Law on the Constitutional Court and its implementing regulations had resulted in a set of proceedings that had lacked any clearly determined purpose, remained inaccessible to the DPS and Mr Riza and been unappealable (see paragraphs 119 and 120 above). The Government considered that the two applicants had been involved in the proceedings to the extent required in order to defend their interests, as the Constitutional Court had considered their observations and replied to them in its judgment of 16 February 2010 ( see paragraph 133 above ). 158. The Court observes from the outset that the applicant party disputed neither the independence nor the impartiality of the Bulgarian Constitutional Court dealing with the post-electoral case in question. It sees no reason to reach any different conclusion on that matter. 159. The Court then notes that the Law on the Bulgarian Constitutional Court and its implementing regulations only provide for one type of proceedings for all cases submitted to it. The same procedural rules are therefore applicable to cases concerning the compatibility with the Constitution of domestic legislative provisions and to disputes concerning the lawfulness of general elections and election results. In the present case it is not the Court ’ s task to adjudicate in abstracto on the compatibility with the Convention and its Protocols of the legislature ’ s approach. It will confine itself to assessing whether, in the instant case, the proceedings in issue allowed the applicants to defend their legitimate interests effectively, as persons or parties participating in general elections. 160. In the initial complaint on which the impugned proceedings were based, the leader of the RZS political party and three of its members contested the lawfulness of the election of seven DPS deputies, alleging serious violations of electoral legislation in all the polling stations operating in Turkish territory ( see paragraph 22 above ). The proceedings led to the annulment of the elections in 23 of the 123 polling stations in question and to the cancellation of Mr Riza ’ s parliamentary mandate, which had not been included in the initial complaint. The Court observes that that situation is the result of the combined effect of three specific aspects of the Bulgarian electoral system : the allocation under proportional representation at the national level of 209 parliamentary seats among the different political parties; the consideration of out-of-country votes solely for that allocation of seats at the national level; and the subsequent allocation of seats won by each party in the 31 multiple-member constituencies in Bulgaria. Having regard to those specific features of the Bulgarian electoral system, the decisions whether to annul one or more parliamentary mandates and which mandates to annul depended on the number of votes invalidated and their apportionment among the different parties. The Constitutional Court therefore had first of all to establish whether the voting procedure had been sufficiently seriously flawed to require the annulment of the results of voting. The Constitutional Court chose to limit the territorial scope of its assessment of observance of electoral legislation to the polling stations specially opened in Turkish territory because those stations had been explicitly mentioned in the initial complaint submitted to it. The Court will not question the domestic court ’ s choice in this respect. 161. All the parties ’ observations and the expert reports presented to the Constitutional Court concerned the question whether there had been irregularities in the voting procedure in the polling stations in Turkey, and if so, whether those irregularities had been sufficiently serious to justify annulling the results ( see paragraphs 22 and 25-37 above ). The reasoning set out by the Bulgarian Constitutional Court in its judgment of 16 February 2010 had been based on the same questions ( see paragraphs 38-48 above ). The Court considers that all these elements show that the subject matter of the dispute before the Constitutional Court, that is to say the alleged irregularity of the voting procedure in all the polling stations operating in Turkish territory, was known to all those taking part in the proceedings right from the outset. 162. The wording of section 112 of the 2001 Electoral Law suggested that a dispute concerning the alleged unlawfulness of the election of a deputy necessarily involved the latter and the natural or legal persons disputing his or her election .... The applicant party relied on that provision to argue that the DPS and Mr Riza had been parties to the proceedings right from the outset, and at the very least since their explicit request to join the proceedings on 15 and 16 February 2010. However, it cannot be overlooked that Rule 21 (1) of the Rules of the Constitutional Court confers on it the discretionary power to determine the parties involved in proceedings before it .... It was in the framework of that power that the Constitutional Court designated a number of State institutions and bodies and two non- governmental organisations as parties to the proceedings ( see paragraph 24 above ). 163. It is true that the Constitutional Court did not reply to the request submitted by Mr Riza and the DPS to be joined as parties to the proceedings. On the other hand, the National Assembly joined as a party to the proceedings on 11 August 2009 ( see paragraph 24 above ). The Court will not question the Constitutional Court ’ s choice in this regard. Owing to the specific features of the Bulgarian electoral system ... it was impossible to foresee which party or individual candidate would be affected by the final decision. In that framework, designating the National Assembly as a party to the proceedings before the Constitutional Court seemed logical because all the deputies were potentially concerned by the future judgment of that court and all the political parties which had participated in the allocation of seats under the proportional system were represented in the Assembly. 164. On the date on which Parliament was officially designated as a party to the proceedings, the DPS had a parliamentary group comprising 38 deputies. Mr Riza, who is a Vice- President of the party, joined the ranks of his parliamentary group in October 2009 ( see paragraphs 20 and 21 above ). The two applicants acknowledged that it was through the intermediary of the parliamentary group that Mr Riza and the party organs had obtained a copy of the initial statement of claim ( see paragraph 120 above ). The Court notes that the DPS parliamentary group played a much more active role in the impugned proceedings before the Constitutional Court than the applicants would admit. Through the intermediary of the national Parliament the DPS parliamentary group presented observations on both the admissibility and the merits of the case, in which it countered the arguments set out in the appellants ’ complaint ( see paragraph 25 above ). The Constitutional Court replied to those observations in its judgment of 16 February 2010 (see paragraphs 39-48 above). The DPS parliamentary group also pronounced on the additional expert assessment ordered by the Constitutional Court on 27 January 2010, contesting the criteria used in order to deduct from the election results the votes cast in the 23 polling stations in Turkey ( see paragraph 34 above ). Those criteria subsequently proved decisive for the outcome of the proceedings ( see paragraphs 46-48 above ). 165. In the light of all the above factors, the Court notes that during the proceedings before the Constitutional Court the DPS parliamentary group actively defended the interests of its political party and those of Mr Riza, who was a party member. Moreover, it would appear that through the intermediary of the national Parliament, which was officially a party to the proceedings, the parliamentary group, and therefore the two applicants, had access to all the documents in the case file and were regularly updated on the progress of the proceedings ( see, in particular, the content of their individual requests for leave to join the proceedings as parties in paragraph 37 above ). Having regard to the circumstances of the case and notwithstanding that the two applicants were not officially parties to the impugned proceedings, the Court considers that they did actually participate in the proceedings through the intermediary of the DPS parliamentary group and that they had an opportunity to set forth their arguments against the annulment of the election results in the polling stations in Turkish territory and to contest effectively the arguments presented by the appellants. 166. The DPS and Mr Riza also complained that no appeal had lain against the Constitutional Court ’ s judgment. The Court observes in that regard that none of the provisions of the Convention or the Protocols thereto require Contracting States to put in place an appeal system for electoral disputes, let alone provide for an appeal against Constitutional Court judgments, where States opt for assigning the adjudication of post-electoral disputes to such superior courts. It should also be noted that in its Code of Good Conduct in Electoral Matters, the Venice Commission recommends introducing the possibility of appealing to a tribunal solely where the first-instance decisions have been given by specialised bodies such as electoral committees ( see paragraph 92 above ). 167. All the applicants contested the reasons on which the Constitutional Court had based its decision to annul the voting in 23 polling stations. The Court reiterates that it is not its task to replace the domestic courts in assessing the facts or interpreting domestic law, in this case the Bulgarian Electoral Law. It must, however, satisfy itself that the decision given by the domestic court was not arbitrary or manifestly unreasonable ( see paragraph 143 above ). 168. The Court observes that the Bulgarian Constitutional Court noted the following irregularities in the electoral documents in order to justify the annulment of the voting in the 23 polling stations in question : the failure to put on file the minutes of voting in one polling station; no first page for the minutes of voting or no information on the first page concerning the number of persons voting; and failure of the chair and secretary of the local electoral commission to sign at the bottom of the list of voters registered on election day ( see paragraph 46 above ). The Bulgarian Constitutional Court accepted that the minutes of voting constituted the main document establishing the facts concerning voting in a given polling station, and that the absence of the first page of that document and the signatures at the bottom of the additional list of voters affected its probative value vis-à-vis the reality of the voting in the polling station in question ( see paragraphs 46 and 47 above ). 169. The Court notes that the minutes of voting as defined by Bulgarian legislation plays a dual role in the voting process: the second page of the minutes sets out the results of the voting, and it is on the basis of those data that the Central Electoral Commission determines the election results ...; the first page of the minutes also contains the number of persons registered on the electoral roll and the number of those who actually voted on election day ... and thus serves as a basis for comparison with the electoral rolls in detecting various types of electoral fraud, such as ballot-box stuffing and the inclusion of fictitious voters on the lists of persons voting. In the present case, there were no minutes on file for just one of the polling stations in Turkish territory; as regards the other three, the first page of the minutes was missing; and in respect of another polling station the minutes failed to record the number of persons who had voted on election day ( see paragraph 33 above ). 170. The Court observes that it was only in the last of those five polling stations that the irregularity concerning the minutes was, in all likelihood, committed on election day by the members of the local electoral commission and that that irregularity can therefore be considered as circumstantial evidence of electoral fraud. Given that the electoral documents from out-of-country polling stations had first of all been handed over to the Bulgarian diplomatic representatives at the close of voting on election day and only then been sent on to the Central Electoral Commission in Bulgaria ..., it cannot be ruled out that the minutes from the first of those polling stations and the first page of the minutes from the other three had gone missing at that stage. The Constitutional Court failed to look into that possibility, despite the reports from some of the members of the Central Electoral Commission that the electoral documents from Turkey had previously been opened and then resealed before being sent to the Commission ( see paragraph 36 above ). 171. Without seeking to establish whether the minutes from those four polling stations had in fact been completed, signed and handed over in their entirety to the Bulgarian diplomatic services in Turkey by the corresponding local electoral commissions, the Constitutional Court merely noted their total or partial absence from the files of the competent State bodies, which automatically led to the annulment of the voting in those four polling stations. The Constitutional Court thus based that part of its decision on a factual finding which did not in itself demonstrate that there had been any kind of irregularity in the voting procedure in the four polling stations. 172. The Constitutional Court decided to annul the elections in another 18 polling stations on the grounds that the lists of voters registered on the day of the elections had been signed neither by the chair nor the secretary of the local electoral commission. Its judgment acknowledged that the Electoral Law did not explicitly require such signatures. It nonetheless considered that such signature was one of the fundamental and obvious components of any official document and that the model “ additional list of voters ” approved by Presidential Decree provided for such signatures ( see paragraph 47 above ). The Constitutional Court thus applied by analogy the provisions on “ additional lists of voters ” and “ under -the- line lists ” drawn up in the polling stations in Bulgarian national territory ... to the specific case of the lists of non-preregistered voters drawn up on election day in the out-of-country polling stations. It annulled the voting in the 18 polling stations on the grounds that the irregularities noted in the voting lists had irremediably affected the probative value of the minutes of voting. 173. It transpires from the case file that all the electoral documents from those 18 polling stations (ballot-papers, minutes and electoral lists ) had been filed and placed at the disposal of the experts and the members of the Constitutional Court. The Court observes that the lack of the two signatures is the only irregularity that was found in those electoral documents. Moreover, the Constitutional Court acknowledged in its judgment that the absence of the signatures of the local electoral commission officials only cast doubt on the probative value of the lists of voters and consequently the accuracy of the data set out in the minutes of voting, and not the validity of the votes cast. 174. Clearly, non-compliance with the formal requirements concerning electoral lists may point to fraud relating to the composition of the electorate. However, the Court considers that that was not necessarily the case in the specific context of the present case. It cannot be overlooked that at the material time there were omissions in the Bulgarian electoral legislation concerning the formalities to be observed by out-of-country local electoral commissions when registering voters on the electoral lists on election day. The Constitutional Court came up against that problem in the present case, and it resorted to application by analogy of the Electoral Law in order to fill the legal vacuum left by the legislature ( see paragraph ... 47 ... above ). However, the 18 lists of voters in question were not the only ones lacking the two signatures in question. In fact, this was a recurrent formal omission because the additional lists of voters had not been signed by the chairs and secretaries of the electoral commissions in a total 116 of the 123 polling stations in Turkish territory ( see paragraph 29 above ), which amounted to some 42 % of all the out-of-country polling stations ( see paragraph 13 above ). The Court considers that that information only confirms its finding that domestic legislation was insufficiently clear on this specific point. Under those circumstances it considers that that omission, which is purely technical in nature, does not in itself demonstrate that the voting procedure in those 18 polling stations involved irregularities justifying the annulment of the election results. 175. The Constitutional Court used an additional criterion to annul the election results in the 18 polling stations in question, that is to say the fact that none of the pre-registered voters had cast their votes in those stations. The Court nevertheless observes that domestic legislation did not require Bulgarian citizens to vote on election day, even where they had previously declared their intention to exercise their voting rights. The criterion in question is therefore a complementary one which cannot in itself reveal any particular irregularity in the voting procedure. The Constitutional Court used it exclusively to eliminate the votes cast by persons included on the unsigned additional lists. 176. These facts are sufficient for the Court to conclude that the decision -making process implemented by the Bulgarian Constitutional Court did not comply with the standards developed in the Court ’ s case-law ( see paragraph 143 above ). In particular, the Constitutional Court annulled the election in 22 polling stations on purely formal grounds. Moreover, the elements on which that court relied to justify that part of its decision were not set out clearly and foreseeably enough in domestic law, and it had not been demonstrated that they had affected the electorate ’ s choice and distorted the election results. 177. As regards the last polling station, where the results were annulled on the grounds that the number of persons voting was not mentioned on the first page of the minutes (see paragraphs 169 and 170 above), the Court observes that the Bulgarian Electoral Law in force at the material time infringed the recommendations of the Venice Commission ’ s Code of Good Conduct in Electoral Matters ( see paragraph 92 above ) by failing to provide for the possibility of organising fresh elections in the event of annulment of voting .... Such a possibility was not introduced into domestic legislation until 2011, and the rule was only applicable where the election results had been annulled in their entirety (ibid. ). It is clear that the impossibility of holding fresh elections had at no stage been considered by the Constitutional Court in deciding whether the annulment of the election results, under the particular circumstances of the case, would be a measure proportionate to the aim sought to be achieved under Article 3 of Protocol No. 1, whose purpose is to ensure the free expression of voters ’ wishes. 178. The Court bears in mind that organising fresh elections in the territory of another sovereign country, even in a small number of polling stations, is always liable to come up against major diplomatic and operational obstacles and occasion additional cost. However, it considers that the holding of new elections in the last polling station, where there was cogent circumstantial evidence that the electoral commission was responsible for irregularities in the voting procedure on election day ( see paragraph 170 above ) would have reconciled the legitimate aim of annulling the election results, that is to say protecting the lawfulness of the electoral procedure, with the subjective rights of the voters and candidates in the general elections. The Court observes that the judgment of the Bulgarian Constitutional Court also failed to take that factor into account. 179. On those grounds, the Court considers that the annulment by the Bulgarian Constitutional Court of the election results in the polling stations in question, the cancellation of Mr Riza ’ s parliamentary mandate and the DPS ’ loss of a parliamentary seat assigned under the proportional system amounted to an interference in the exercise of the 101 applicants ’ active electoral rights and of Mr Riza ’ s and the DPS ’ passive electoral rights. Having regard to the lacunae noted in domestic law and the lack of any possibility of organising fresh elections, the impugned judgment, which was based on purely formal arguments, occasioned an unjustified infringement of the 101 applicants ’ and Mr Riza ’ s and the DPS ’ rights to take part in the general elections as voters and candidates respectively. There were therefore two separate violations of Article 3 of Protocol No. 1. ... III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 185. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 186. The first applicant, Mr Risa, claimed EUR 60,155 in respect of pecuniary damage, explaining that that amount was the equivalent of four years ’ deputy ’ s salary which he would have received in the national Parliament. He also claimed EUR 15, 000 in respect of non-pecuniary damage. 187. In respect of pecuniary damage, the second applicant, the DPS, claimed an amount equal to that which it would have received in State subsidies for four years if the 18,140 votes cast for the party in the 23 polling stations in question had not been deducted from its electoral score. It presented two estimates of that sum computed in accordance with two different methods of calculation which, it submitted, depended on the changes in domestic legislation in connection with the calculation and payment of the State subsidy to political parties ... : EUR 395,507 under the first method and EUR 335,740 under the second. 188. The other 101 applicants considered that the finding of a violation of their right as guaranteed by Article 3 of Protocol No. 1 would in itself amount to sufficient just satisfaction. 189. The Government objected to the claims submitted by Mr Riza and the DPS. They invited the Court to declare that the finding of a violation would constitute sufficient just satisfaction. In the alternative, they submitted that the claims lodged by the first two applicants were excessive and unsubstantiated. 190. As regards pecuniary damage, the Court observes that Mr Riza and the DPS claimed sums which they stated represented the earnings lost owing to the impugned judgment of the Bulgarian Constitutional Court for a period of four years, that is to say the whole of the 41 st parliamentary term. The Court considers that those claims are not sufficiently substantiated, for the reasons set out below. 191. First of all, the Court notes that the two applicants based their estimates on the presumption that the 41 st National Assembly would complete its four-year term. In fact the Assembly was dissolved by Presidential Decree before it could complete its term ( see paragraph 52 above ). Secondly, the Court observes that Mr Riza, like all national parliamentary deputies, could not have been sure that he would complete his four-year term and that he did not specify the amount of alternative income he received between the time of cancellation of his mandate and the end of the 41 st parliamentary term. Thirdly, the Court notes that the finding of a violation in the present case is based not only on the annulment of the elections in the polling stations in question but also on the fact that no new elections could be organised ( see paragraphs 176-178 above ). Thus the Court is not in a position to calculate the DPS ’ lost earnings on the basis of the difference between the annulled votes and the votes which the party would have obtained following hypothetical new elections. 192. The Court consequently considers that these two applicants ’ claims in respect of pecuniary damage should be rejected. 193. As regards compensation for alleged non-pecuniary damage, in view of the specific circumstances of the case the Court considers that the finding of a violation of the voting rights of the 101 applicants listed in the appendix and the finding of a violation of Mr Riza ’ s right to stand for election represent sufficient just satisfaction for the non-pecuniary damage which they sustained. B. Costs and expenses 194. The DPS also claimed EUR 5,300 for costs and expenses, which sum corresponded to the legal fees incurred before the Court. The other 101 applicants claimed EUR 3, 400 for costs and expenses, which sum they stated corresponded to legal fees incurred before the Court. 195. The Government considered that the sums claimed under this head by the applicants were excessive and unsubstantiated. 196. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 197. In the present case, the Court observes that all the applicants were represented by the same lawyer and that the pleas put forward by the applicants were largely identical. In view of those circumstances, the documents presented and its relevant case-law, the Court considers it reasonable to award the sum of EUR 6, 000 EUR jointly to the DPS and the other 101 applicants. C. Default interest 198. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 3 of Protocol No. 1 to the Convention in respect of the voting rights of the 101 applicants, finding that, in view of the lacunae in domestic law and the lack of any possibility of holding fresh elections, the impugned judgment of the Constitutional Court, which was based on purely formal arguments, had caused an unjustified breach of their rights to participate in the legislative elections as voters. The Court stated in particular that it did not overlook the fact that the organisation of fresh elections in another sovereign country, even in only a limited number of polling stations, might face major diplomatic or organisational obstacles and entail additional costs. It found, however, that the holding of fresh elections, in a polling station where there had been serious anomalies in the voting process on the part of the electoral board on the day of the election, would have reconciled the legitimate aim behind the annulment of the election results, namely the preservation of the legality of the electoral process, with the rights of the voters and the candidates standing for election to Parliament.