Decision No. 3 of 23 February 2017 on Constitutional Case No. 11/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Ombudsman of the Republic of Bulgaria. The subject matter of the case concerns the constitutionality of the provision of Article 242a of the Election Code (EC), which regulates the legal consequences of the non-exercise of the right to vote. The request alleges that the provision is contrary to the principle of the rule of law under Article 4 of the Constitution, the principle of equality of citizens before the law under Article 6, paragraph 2, the principle of universal, equal, and direct suffrage under Article 10 of the Constitution, as well as the constitutional provisions of Article 42, paragraphs 1 and 2 concerning the conditions for acquiring the right to vote and the organisation and procedure for conducting elections.
Summary of the Court’s Reasoning
The right to vote is characterised as a political right in terms of its content, a fundamental subjective right which directly derives from popular sovereignty. It constitutes a primary means for the realisation of democratic governance. The Court holds that Article 242a of the Election Code is incompatible with the constitutional conception of the content of the right to vote, viewed in conjunction with other political rights.
The non-exercise of the right to vote is subjected to coercion, as Article 242a, paragraph 1 of the Election Code provides for the removal from the electoral registers, for the subsequent elections, of persons who have not voted without justified reasons in two consecutive elections of the same type, as well as their inclusion in a separate register of removed persons. This constitutes a legal sanction, as it adversely affects the legal sphere of individuals by imposing unfavourable consequences, which under certain conditions may lead to a lasting impossibility to exercise the right.
Given the exceptional importance of the right to vote as a means of citizens’ participation in the governance of the State and of exercising political control over state bodies constituted through elections, it is enshrined as a fundamental right and, pursuant to Article 57, paragraph 1 of the Constitution, is inalienable. The constitutional guarantee of the inalienability of the right to vote excludes the possibility for it to be made conditional upon constitutional obligations or for procedural obstacles to be introduced by law that would hinder or render its exercise impossible. Moreover, the Constitution does not contain any provision allowing for the restriction of the right to vote by subsequent legislative act. The introduction of additional requirements for the exercise of the right to vote, laid down in Article 242a, paragraph 2 et seq. of the Election Code, obstructs the exercise of the right, and consequently there is a contradiction with Article 57, paragraph 1 of the Constitution.
By introducing the sanction, the legislator attempts to address the problem of democratic legitimation of the system of governance, but does not resolve the substantive issue of electoral absenteeism. The removal from electoral rolls of persons who have not voted, introduced by Article 242a of the Election Code, as well as the procedural obstacles established for the subsequent reinstatement of such persons in the electoral rolls and their inclusion in the voters’ lists, further complicate the problem of electoral participation and therefore do not contribute to achieving the objective declared by the law.
The principle of universal suffrage requires that all citizens who possess the right to vote at the time elections are held be included ex officio in the electoral rolls. Consequently, the challenged provision is unconstitutional, as it seeks to address a governance problem by restricting the right to vote, which cannot be imposed as an obligation upon voters.
Article 42, paragraph 1 of the Constitution exhaustively sets out the conditions for acquiring the right to vote, namely that the citizen must have reached the age of 18, must not have been placed under legal incapacity, and must not be serving a custodial sentence. The Constitution does not provide for, nor permit, any other restrictions on the acquisition of the right to vote. Inclusion in the electoral roll does not give rise to the right to vote, which exists ex constitutione; rather, it serves to legitimise the citizen as a voter and constitutes a mandatory precondition for the exercise of the right to vote.
The Constitutional Court considers the request well-founded also insofar as it claims the unconstitutionality of Article 242a, paragraph 1 of the Election Code, due to impermissible delegation of legislative powers to the Central Election Commission with regard to regulating the conditions and procedure for sanctioning citizens who have not exercised their right to vote. By Article 42, paragraph 1 of the Constitution, the constitutional legislator has established the conditions for acquiring the right to vote. No other norm of the same hierarchical level provides for the possibility that additional preconditions for the acquisition or restriction of the right to vote may be regulated by law.
Article 242a, paragraphs 1 - 5 of the Election Code is also in conflict with the principle of equality of citizens before the law, as it requires the citizens referred to in paragraph 1 to take active steps in order to be included in the electoral roll, including proving the existence of justified reasons for non-participation in voting. This places them in a position of inequality compared to other citizens referred to in Article 242a, paragraph 6 of the Election Code, for whom no sanction for non-exercise of the right to vote has been introduced, while the State guarantees them the privilege of being entered ex officio in the electoral rolls, even though the reasons for their abstention from voting may also be unjustified. The legislative approach of unequal treatment of Bulgarian citizens with respect to constitutionally recognised fundamental rights leads to the unconstitutionality of Article 242a, paragraph 6 of the Election Code, due to its inconsistency with Article 6, paragraph 2 of the Constitution.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court declares unconstitutional the provision of Article 242a of the Election Code on the grounds of its inconsistency with the Preamble of the Constitution, as well as with the constitutional provisions of Article 4, Article 5, paragraph 1, Article 6, paragraph 2, Article 10, Article 37, paragraph 1, Article 38, Article 42, and Article 57 of the Constitution.