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Joint Opinion on the Election Code of Bulgaria

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Joint Opinion on the Election Code of Bulgaria Strasbourg, 21 June 2011 CDL-AD(2011)013 Opinion No. 607 / 2011 Or. Engl. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) AND OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN RIGHTS (OSCE/ODIHR) JOINT OPINION ON THE ELECTION CODE OF BULGARIA Adopted by the Council for Democratic Elections at its 37 th meeting (Venice, 16 June 2011) and by the Venice Commission at its 87 th plenary session (Venice, 17-18 June 2011) based on comments by Mr Oliver KASK (Member, Estonia) Mr Ugo MIFSUD BONNICI (Member, Malta) Mr Kåre VOLLAN (Expert, Norway) Mr Denis PETIT (Expert, OSCE/ODIHR) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-AD(2011)013 - 2 - Table of contents I. Introduction................................................................................................................ - 3 - II. General Comments.................................................................................................... - 6 - III. Right to Vote and be Elected ................................................................................. - 6 - IV. Election Administration .......................................................................................... - 9 - V. Political Party Registration....................................................................................... - 10 - A. Signatures and deposits ...................................................................................... - 10 - B. Registration ......................................................................................................... - 12 - VI. Political Party and Campaign Financing............................................................... - 12 - VII. Voter Lists and Voters’ Registration..................................................................... - 13 - VIII. Campaign ............................................................................................................ - 14 - IX. Media................................................................................................................... - 14 - X. Voting Process ........................................................................................................ - 14 - XI. Internet Voting ..................................................................................................... - 15 - XII. Counting Process ................................................................................................ - 16 - XIII. Complaints and Appeals Procedures ................................................................... - 17 - A. Complaints against Election Commissions’ Decisions and Actions ...................... - 17 - B. Contesting Election Results ................................................................................. - 17 - C. Time-limits ........................................................................................................... - 18 - XIV. Specific Issues Concerning the Local Self-Government Bodies........................... - 19 - A. Municipal councillors............................................................................................ - 19 - B. The direct election of mayors of “local settlements” ............................................. - 19 - C. Election of “district mayors”.................................................................................. - 19 - XV. Other issues ........................................................................................................ - 20 - XVI. Concluding remarks............................................................................................. - 20 - - 3 - CDL-AD(2011)013 I. Introduction 1. On 3 December 2010, the President of the Congress of Local and Regional Authorities of the Council of Europe (“the Congress“) requested the Venice Commission to prepare an opinion on the Election Code of Bulgaria (“the Code”). 2. This request followed a monitoring visit to Bulgaria by a delegation of the Congress from 24-26 November 2010. At the time of the request, the Election Code was still a draft. On 19 January 2011 the National Assembly of Bulgaria adopted the Election Code, which entered into force in January 2011. 1 The Venice Commission and the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) decided to provide a joint legal opinion on the adopted Code. 3. The Election Code of Bulgaria is the first unified electoral legislation in Bulgaria, bringing together previous separate electoral laws. The Election Code supersedes the followings acts: - Act on the Election of Members of Parliament (2001 and last amended in 2009); - Act on the Election of President and Vice President of the Republic of Bulgaria (1991 and last amended in 2006); 2 - Act on the Election of Members of the European Parliament from the Republic of Bulgaria (2007); and - the Local Elections Act (1995). 4. The adoption of the unified Election Code of Bulgaria was preceded by a debate between the President and the National Assembly regarding certain provisions of the Code. In early January 2011, President Georgi Parvanov vetoed the Code adopted by the National Assembly. The Code was returned to Parliament for reconsideration of a wide range of its provisions. The presidential veto was eventually overridden by a “majority of more than half of all Members of the National Assembly”.3 5. Among the reservations voiced by President Parvanov were the following: the 12-months residency requirement in order to participate in local elections; limitations on voting rights of citizens with dual citizenship, preventing certain parts of the population holding dual citizenship, particularly Bulgarians of Turkish ethnicity, from being eligible to stand as candidates; abolition of the direct election of district mayors; increased population threshold for the election of mayors of villages or “settlements”; and reduction of the number of municipal councillors. 6. Following its monitoring visit, the Congress raised the following concerns: “[…] the draft text introduces major changes regarding local elections which will henceforth take place only in the territory of the country. Active and passive electoral rights in the future will be limited by a residency requirement of 12 months. The mayor will still be elected under the majority system, while the municipal councillors under the proportional system, but the number of municipal councillors will be reduced by 20% according to the new thresholds defined by the different sizes of municipalities. A reduction in the number of political parties being represented at local 1 Election Code of the Republic of Bulgaria in force as of 19 January 2011 (CDL- REF(2011)008). www.venice.coe.int/docs/2011/CDL-REF(2011)008-e.pdf . 2 www.legislationline.org/documents/action/popup/id/6202 . 3 As required by Article 101(2) of the Constitution. CDL-AD(2011)013 - 4 - level is also expected along with further constraints for registration of political parties and coalitions. Moreover, this draft bill introduces an increased population threshold to elect the mayors of mayoralties, which goes up from 150 to 500 inhabitants. It also limits the number of designated deputy mayors and as a consequence the powers of the mayors to determine their own internal administrative structures as stated in Article 6, paragraph 1 of the European Charter of Local Self-Government.” 4 7. This joint opinion is based on an English translation of the Code provided by the National Assembly of Bulgaria to the Venice Commission on 11 February 2011. The accuracy of the translation as well as of the numbering of articles, clauses, and sub-clauses cannot be guaranteed, and therefore the interpretation of the latter as reflected in the comments made hereafter may have been affected by inaccuracies in the translation. 8. On 12-13 May, the Venice Commission and OSCE/ODIHR conducted a joint expert visit to Sofia. They had meetings with the Speaker of the National Assembly, the Legal Affairs Committee of the National Assembly, the president and judges of the Constitutional Court, the chairperson and other members of the Central Election Commission, the National Association of Municipalities as well as representatives of the main political parties of the Republic of Bulgaria. The visit took place a few days after the Constitutional Court handed down its decision on a petition filed by opposition political parties. 5 The Court declared unconstitutional several provisions of the Election Code, which have been matters of discussion during the expert visit. The information and views shared with the delegation during and after the visit have been taken into consideration in this opinion. 9. Following the ruling of the Constitutional Court on 4 May 2011, the National Assembly of Bulgaria on 2 June adopted a series of amendments to the Election Code, some of which addressed OSCE/ODIHR and Venice Commission recommendations. 10. The recommendations and comments offered in this opinion are intended to assist the authorities in bringing the Election Code closer in line with OSCE commitments as well as Council of Europe and other international standards. The Venice Commission and OSCE/ODIHR remain committed to providing assistance to further improve the legal framework for elections in Bulgaria. It is important to note that the ultimate test for assessing compliance of the Election Code with international standards lies with its implementation, particularly the level of political will exhibited by state institutions and officials
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