CDL-AD(2020)025
- 52 -
of concern for the integrity and effectiveness of the electoral process which could not be
considered compatible with the spirit of the right to free elections.
(j) Enforceability of final judicial decisions
Failure to abide by final decisions given in response to electoral appeals undoubtedly
undermines the effectiveness of a domestic system for election dispute resolution.204
Specific case:
In Petkov and Others v. Bulgaria (nos. 77568/01, 178/02 and 505/02, 11 June 2009) the
applicants complained about the failure of the electoral authorities to abide by final court
judgments and reinstate them on list of candidates for parliamentary elections.
All three applicants were registered as candidates in the parliamentary elections to be held on
17 June 2001. Some two and a half months prior to the election, new legislation came into
force which contained a provision allowing parties or coalitions to withdraw nominations of
individuals who had allegedly collaborated with the former State security agencies. The
applicants were struck off the lists of candidates on account of such allegations just ten days
before the elections took place. The decisions to strike them off the lists were subsequently
declared null and void by the Supreme Administrative Court. However, the electoral authorities
did not restore their names to the lists and as a result they could not run for Parliament.
The Court noted that it was not its task to decide whether or not it had been contrary to the
Convention to allow political parties to withdraw their candidates on account of their links with
the former State security agencies. Nor was it required to determine the correctness of the
Supreme Administrative Court’s rulings. Its task was confined to assessing whether the
electoral authorities’ failure to give effect to the final and binding judgments of the Supreme
Administrative Court had violated their rights to stand for election.
The reason the electoral authorities had not complied with the judgment was either that they
considered that the Supreme Administrative Court had given erroneous rulings or that they
believed that the judgments had not become final. However, the Court held, in a democratic
society abiding by the rule of law, it was not open to the electoral authorities to cite their
disapproval of findings made in a final judgment as a reason for not complying with it. It was
not only contrary to domestic law not to give effect to those judgments, but it also deprived the
procedural guarantees available to the applicants of any useful effect and was, in the Court’s
view, arbitrary.
The Court took account of the difficulties the electoral authorities faced on account of the fact
that two of the Supreme Administrative Court’s judgments had been given only a couple of
days before the elections. However, those difficulties had been largely attributable to the
authorities themselves. Firstly, the new electoral law had been adopted just over two months
before the elections took place, at odds with the Council of Europe’s recommendation on the
stability of electoral law. Furthermore, instead of requiring political parties to verify links with
former State security agencies before nominating their candidates, the parties were allowed
to do so afterwards. Finally, the practical arrangements for the withdrawal of candidates had
been clarified only twelve days before the elections took place. All this resulted in serious
practical difficulties and led to legal challenges that had to be adjudicated and acted upon
under extreme time constraints.
The Court therefore found a violation of Article 3 of Protocol No. 1.
204
See Petkov and Others v. Bulgaria, nos. 77568/01, 178/02 and 505/02, § 63, 11 June 2009.