Election observation report | Doc. 12008 | 16 September 2009

Observation of the parliamentary elections in Bulgaria (5 July 2009)

Author(s): Ad hoc Committee of the Bureau

Rapporteur : Mr Tadeusz IWIŃSKI, Poland, SOC

1. Introduction

1. The Bureau of the Parliamentary Assembly decided, at its meeting on 27 April 2009, to set up an ad hoc committee of 20 members to observe the parliamentary elections in Bulgaria (5 July 2009), subject to the receipt of an invitation. On 28 May 2009, the Bureau, subject to the condition mentioned above, approved the composition of the ad hoc committee and appointed me as its Chairman. In the absence of a timely invitation, the Bureau decided, on 22 June 2009, to cancel the observation mission and to refer the matter to the Monitoring Committee in the context of its post-monitoring dialogue, with a view to a possible debate at the October 2009 part-session, as foreseen in the Guidelines on Observation of Elections by the Parliamentary Assembly. The Bureau also adopted a statement on this matter (Appendix 1). On 23 June 2009, the Chairman of the Bulgarian Delegation to PACE reacted to the Bureau declaration and invited the Assembly to observe the 5 June parliamentary elections (Appendix 2). The President’s response is reproduced in Appendix 3. On 26 June, following the receipt of the said invitation, the Bureau reconsidered its decision of 22 June 2009 and decided to observe these elections according to the modalities defined at its meeting of 28 May 2009.

2. Following the proposals of the political groups, the ad hoc committee was composed as follows:

• Group of the European People’s Party (EPP/CD)

  • Mr Renato FARINA, Italy
  • Mr Oliver SAMBEVSKI, ‘the former Yugoslav Republic of Macedonia’
  • Mr Mehmet TEKELIOĞLU, Turkey

• Socialist Group (SOC)

  • Mr Andreas GROSS, Switzerland
  • Mr Tadeusz IWIŃSKI, Poland
  • Mr Geert LAMBERT, Belgium

• Alliance of Liberals and Democrats for Europe (ALDE)

  • Mr Michael Aastrup JENSEN, Denmark
  • Mr Andrea RIGONI , Italy

• European Democrat Group (EDG)

  • Mr Mevlüt ÇAVUŞOĞLU, Turkey
  • Mr Vladimir ZHIDKIKH, Russian Federation

3. The Venice Commission was not represented in this mission due to the late invitation.

4. Mr Dronov and Mr Daeschler provided secretarial support to the ad hoc committee.

5. The ad hoc committee conducted its mission from 3 to 6 July 2009 (see Appendix 4 for the programme of the visit). On election day, the committee was split into seven teams and observed elections in and around Sofia (two teams), Dupnica, Prnik, Plovdiv, Valiko Tyrnovo, Blagoevgrad, Montana, Vratsa and Asenovgrad covering a total of 65 polling stations.

6. The ad hoc committee acted as part of an International Election Observation Mission (IEOM) that also included the OSCE/ODIHR limited election observation mission. Relations with our partners were, generally, cordial. We did, however, initially experience frictions in our interplay with ODIHR, which at the outset, sought to assume the role of the lead observer institution. A joint statement was presented by the heads of the delegations constituting the IEOM at a press conference held on 6 July at 1.00 p.m. (Appendix 5).

7. The ad hoc committee regrets that this was an unprecedented case of very limited cooperation extended to it by the Bulgarian Parliament. It deplores the fact that colleagues from the Bulgarian PACE delegation did not find it possible to meet with it, despite repeated requests made. The entire election observation operation, including the complicated logistical arrangements, had to be managed by the PACE secretariat on its own, in co-operation with the Information Office of the Council of Europe in Sofia, within a very tight time-frame. The OSCE/ODIHR LEOM could not assist in the logistical arrangements either. This election observation proves once again that PACE is fully equipped to organise its own election observation missions without reliance on national or other institutional partners.

2. Political background, legal framework, election administration, registration of political parties, party lists and candidates, election campaign

8. On 28 April 2009, the President of Bulgaria called parliamentary elections for 5 July 2009. The Constitution of Bulgaria stipulates that Parliament is elected for a term of four years. The term of the outgoing Parliament expired on 25 June 2009.

9. The 5 July 2009 parliamentary elections in Bulgaria were the first national elections since the country joined the European Union in 2007. The elections were held four weeks after the elections to the European Parliament, the two campaigns being closely linked.

10. Parliamentary elections in Bulgaria are primarily regulated by the Law on Election of Members of Parliament (hereinafter election law), adopted in 2001 and most recently amended in April 2009.

11. The legal framework also includes the 1991 Constitution (last amended in 2007), the Law on Political Parties (last amended in January 2009), the Criminal Code, laws on the courts and codes of procedures. The Central Election Commission (CEC) issues instructions and decisions to clarify legal provisions and assist election administrators.

12. Following the April 2009 amendments to the election law, the elections to the 240-seat National Assembly were held according to a new mixed system: 31 Members of Parliament (MPs) were elected by the majoritarian system and 209 MPs were elected by proportional representation. Parties and coalitions that passed the nationwide threshold of four percent were eligible to receive proportional representation mandates.

13. The election law is generally conducive to the holding of democratic elections, although some issues arise relating to complaints and appeals. According to Article 112 of the Law, the only way to challenge the results is to appeal to the Constitutional Court within 14 days after the announcement of the results by the CEC. Under Article 150 of the Constitution, only a few institutions, including one-fifth of the Parliament, can initiate such a procedure with the Constitutional Court. Given that the new Parliament would not be formed within the prescribed deadline, there would be no effective judicial procedure to challenge election results.

14. In the run-up to the elections, only a small number of election complaints were filed with the election administration, courts and executive authorities. The CEC received fifteen formal complaints and appeals against the decisions of District Election Commissions (DECs), mostly related to the registration of parties and candidates, as well as to the composition of Precinct Election Commissions (PECs). In the majority of cases, CEC upheld the DECs’ decisions. The CEC does not have a written procedure for the complaint and appeal process. There is no clarity on which criteria CEC takes its decisions as to what constitutes a complaint; furthermore there is no specified form for its decisions. The lack of a formal decision from the CEC could render a potential court appeal against a CEC decision inadmissible. Nine appeals were filed with the Supreme Administrative Court, which is the competent body to receive appeals against CEC decisions.

15. A major concern was that the 31 constituencies for the majoritarian representation, each electing one MP, considerably differ in population size. A parliamentarian elected by majoritarian vote in the largest constituency represents almost four times as many voters as the one elected in the smallest constituency. This runs counter to the principle of the equality of vote enshrined in the Constitution. The issue was challenged in the Constitutional Court by 70 Members of Parliament, but the challenge was rejected in an evenly split vote.

16. The introduction of the majoritarian component shortly before the elections led to inconsistencies in the law. In the majoritarian race, the margin of victory can be a very small number of votes. There are no legal provisions allowing a candidate or proxy to challenge the results and a recount is not possible. Absentee voters are allowed to chose any of the 31 constituencies for casting their vote, including in the majoritarian race, thereby undermining the raison d’être of the majoritarian system.

17. The application and interpretation of the election law provision granting immunity to candidates and proxies resulted in the release from pre-trial detention or suspension of prosecution of persons facing serious criminal charges. This provision, originally designed to shield candidates from politically motivated investigations, was abused by those trying to escape from, or to defer, potential sentences, as was acknowledged by the Prosecutor General.

18. This election was administered by a three-tiered election administration consisting of the CEC, 31 DECs and 11 403 PECs. The Ministry of Foreign Affairs coordinated out-of-country voting at 274 PECs in 59 countries. Under the election law, responsibility for the administration and organisation of elections is shared between the Ministry of Administration and the CEC, acting in cooperation with regional and municipal executive bodies. The number of voters on the voters’ lists was 6 884 271.

19. The CEC is a temporary body appointed by the President in consultation with the parties and coalitions represented in the National Assembly and the European Parliament. The CEC is made up of 25 members and, by law, no party may have a majority within its midst. CEC sessions, closed to party proxies and the media, were, according to the OSCE/ODIHR LEOM, well organised, and met all legal deadlines. CEC decisions were regularly published on its website in a timely fashion.

20. Confidence in the impartiality of the CEC, reportedly dominated by the ruling coalition, appeared to have been significantly undermined by what was regarded by many as a politically motivated series of decisions in May 2009 regarding the refusal to register of the opposition Blue Coalition. These decisions were subsequently overruled by the Supreme Administrative Court.

21. The late introduction of changes to the election law placed on the CEC additional challenges to be addressed within tight time-frames. The temporary nature of the CEC and the lack of institutional continuity generated additional problems as illustrated by the late amendment to CEC guidelines only ten days before the voting day.

22. The 31 DECs were appointed by 19 May 2009 and mirrored the composition of the CEC. DECs were trained by the CEC and were, generally, well prepared. The law allows party proxies to attend DEC sessions. DECs appointed the almost 80 000 PEC members in consultation with parties and coalitions.

23. The CEC launched a voter education programme well in advance of election day, including TV spots explaining electoral deadlines, voting procedures, mobile voting and absentee voting. Five domestic observer groups were accredited by the CEC.

24. To be registered to run in these elections, political parties and coalitions had first to submit an application, including 15 000 and 20 000 supporting signatures respectively, to the CEC by 10 June. The CEC deregistered one party and one coalition due to deficient signature lists, thus leaving a total of 14 registered parties and four coalitions.

25. The lists of 14 political parties and four coalitions running in all or some of the 31 multi-mandate constituencies included 4 288 candidates. Majoritarian constituencies were contested by 357 candidates. Four independent candidates were registered.

26. Political parties and coalitions engaged in an election campaign that gained momentum as the voting day approached. While ruling parties, led by the Bulgarian Socialist Party (BSP), laid emphasis on their accomplishments in ensuring economic growth and stability, their opponents insisted on the fact that Bulgaria’s financial aid from the European Union was cut in 2008 due to the government’s inability to fight corruption.

27. Electoral malpractices, such as vote buying (according to independent surveys by Transparency International, up to 15% of the electorate admitted they would be prepared to sell their votes to the highest bidder), corporate vote (a situation where employees are instructed to support a given party supported by the enterprise owner), intimidation and the granting of immunity to individuals facing serious criminal charges dominated the campaign discourse and campaign coverage in the media.

28. The use of absentee voting certificates (AVCs) and out-of-country voting were widely regarded as possible mechanisms for multiple voting.

29. Several legal provisions regulating campaign finances are designed to enhance transparency and accountability. These include an obligation to publish the list of donors, a ban on corporate donations and requirements to disclose the origins of donors’ contributions. The law, however, does not provide for any enforcement mechanisms in this regard.

3. Media environment

30. Bulgaria has a pluralistic media environment enabling freedom of expression and offering voters a wide range of political views. Nevertheless, media independence from political and economic influence is open to question.

31. Regular discussion programmes and talk shows on both public and private broadcasting channels provided the opportunity for contestants to present their views. The CEC, in cooperation with the Council for Free Media, reported that no official complaints had been received relating to the media coverage of the campaign.

32. There is, however, no provision for free airtime. Contestants had therefore to pay considerable amounts for almost all campaign programmes on public broadcasting channels, including debates. The amounts are the same for all contestants. That said, the absence of free airtime provision may have affected at least some contestants ability to address the electorate.

4. Election day

33. The atmosphere on election day was generally calm and peaceful, with a high voter turnout. PACE observers reported that, in some polling stations (in the centre of Sofia) the opening was delayed due to the late arrival of some PEC members. In the municipality of Dupnica, unauthorised individuals appeared to be interfering with the process. In an area close to Plovdiv, PACE observers reported alleged instances of vote buying having witnessed voters walking out of polling stations showing pictures to third persons taken on cell phones. Unconfirmed reports of vote buying continued to circulate throughout the day. The Ministry of Interior started proceedings against four individuals for their possible involvement in vote buying on voting day.

34. PECs faced difficulties in ascertaining the authenticity of AVCs. Several hours after the opening of the vote, and after reports of fake AVCs being widely used in some areas, the CEC adopted a decision on the verification of AVCs. Not all PECs were informed of this in a timely fashion. PACE observers reported that, in some polling stations visited, the percentage of AVCs was as high as one third of the total number of voters on the relevant voters’ lists (Balvan, Galobovo).

35. The counting and tabulation appeared to be professionally conducted and provided for speedy announcement of official results.

5. Results of the elections

36. On 8 July 2009, official results of the elections were made public.

37. The centre-right GERB (Citizens for a European Bulgaria) movement won 39.7% of the votes, while the ruling Coalition for Bulgaria obtained 17.7%; the Movement for Rights and Freedoms (DPS, supported by Bulgarians of Turkish ethnicity) obtained 14.5% of the votes, the radical nationalistic ATAKA received 9.36%, the liberal Blue Coalition obtained 6.7%, and the centre-right Order, Law and Security, 4.13%.

38. Of the 31 majoritarian seats, GERB won 26, with 5 seats going to the DPS.

6. Conclusions and recommendations

39. The IEOM concluded that “the 5 July elections in Bulgaria were generally in accordance with OSCE commitments and Council of Europe standards; however further efforts are necessary to ensure the integrity of the election process and increase public confidence”.

40. The ad hoc committee notes, in particular, a broad difference between the overall orderly voting day and the imperfections revealed in the run-up to the vote.

41. Last minute changes of the electoral legislation run counter to the recommendations set out in the Code of Good Practice in Electoral Matters worked out by the Venice Commission and approved by the Assembly.

42. The ad hoc committee deplores the lack of public confidence in the democratic process in Bulgaria resulting in wide-scale electoral cynicism, as exemplified by the reportedly widespread practice of vote selling and vote buying.

43. The ad hoc committee believes that, to improve the process, the establishment of a permanent CEC in Bulgaria would be most advisable.

44. A democratic election is one that ensures a level playing field for all players. In this connection, the ad hoc committee recommends introducing legal provisions for free airtime on public broadcasting channels for those running in the elections.

45. The ad hoc committee recommends tightening up the existing rules on financial disclosure in the electoral context, in particular, by introducing effective enforcement mechanisms.

46. The ad hoc committee stresses that all cases of alleged malpractices and violations must be carefully investigated and that those found responsible be brought before the courts.

47. The ad hoc committee invites the relevant authorities in Bulgaria to consider soliciting the assistance of the Venice Commission in order to improve the electoral legislation.

48. Given the unprecedented circumstances surrounding this election observation mission, the ad hoc committee suggests that the Bureau confirms its decision of 22 June 2009 to refer the matter to the Monitoring Committee in the context of the post-monitoring dialogue, with a view to a possible debate at the October part session.

49. Given the number and scope of the political problems identified by the ad hoc committee in the course of this observation mission, the Bureau of the Assembly may well wish to consider initiating the reopening of the monitoring procedure with regard to Bulgaria, in accordance with paragraph 2 iv) of the Appendix to Resolution 1115 (1997) as modified by Resolution 1431 (2005) and Resolution 1515 (2006).

50. In accordance with the rules governing the monitoring procedure, any application to open or reopen a monitoring procedure originating with the Bureau would be referred by it to the Monitoring Committee, which would in turn prepare a written opinion containing a draft decision based on the Bureau’s proposal. The Bureau will take its stance in the light of this opinion.

Appendix 1 – Parliamentary Elections in Bulgaria (5 July 2009): Assembly Bureau concerned over Sofia’s lack of cooperation

Strasbourg, 22 June 2009. The Bureau of the Parliamentary Assembly of the Council of Europe (PACE), meeting in Strasbourg on 22 June 2009, expressed its disappointment that the competent authorities of Bulgaria had until now failed to issue an invitation for PACE to observe the forthcoming parliamentary elections of 5 July 2009 and considered this to be a clear case of lack of cooperation with PACE.

The Bureau recalls that Bulgaria is subject to a post-monitoring dialogue and that, in accordance with the existing rules, the Bureau decided, on 27 April 2009, to observe the 5 July elections and set up a twenty member ad hoc committee for that purpose, a decision on which the Bulgarian side was fully aware. The Bureau considers that the non-issuance of a timely invitation is indicative of Bulgaria’s unwillingness to subject the functioning of its democracy to international scrutiny at such an important juncture.

The Bureau recalled that, under the existing rules, observation of elections and referenda on a national level is an inalienable right of the Assembly. A State’s lack of cooperation or its refusal to accept a PACE election observation mission should give rise to a debate at the part-session or the Standing Committee meeting following the elections in question. The debate may result in sanctions that could include the challenge of credentials of the national delegation concerned on the basis of Rule 8.2.b (lack of cooperation under the Assembly’s monitoring procedure).

The Bureau decided to refer the matter to the Monitoring Committee in the context of its on-going post-monitoring dialogue, with a view to a possible debate at the October Part-Session, as foreseen in the rules.

Appendix 2 – Letter from Mr Loutfi, Chairperson Parliamentary delegation of the Republic of Bulgaria, to Mr de Puig, President of the PACE

Appendix 3 – Letter from Mr de Puig, President of the PACE, to Mr Loutfi, Chairperson Parliamentary delegation of the Republic of Bulgaria

Appendix 4 – Ad hoc committee for the observation of the parliamentary elections in the Republic of Bulgaria (5 July 2009)

Programme (3-6 July 2009)

Friday, 3 July 2009

09:00- 09:30 Ad hoc committee meeting

09:30-11:00 Meeting with ODIHR EOM

• Ambassador Colin Munro, Head of ODIHR Mission in Bulgaria
• Ms Lolita Cigane, Deputy Head of Mission and Political Analyst
• Ms Francine Barry, Legal Analyst
• Mr Ron Laufer, Election Analyst
• Mr Rastislav Kuzel, Media Analyst
• Ms Salome Hirvaskoski, National Minority Expert
• Ms Lusine Badalyan, Election Expert
• Mr Goran Petrov, Long Term Observer Co-ordinator
• Mr Krzysztof Wisniowiecki, Logistics Officer

11:20-13:00 Meeting with Ambassadors whose countries are represented on the PACE ad hoc committee

14:30-15:15 Meeting with the Central Election Commission (Party House, Dondukov Blvd)

15:30-16:15 Meeting with Mr Rumen Nenkov, Chairman of the Constitutional Court

16:45-17:30 Meeting with Movement for Rights and Freedom

• Mr Veselin Penev,Chair Pre-Election Committee

17.30-18.00 Meeting with Bulgarian Socialist Party

• Mr Kristian Vigenin, (EMP)
• Mr Evgeni Kirilov (EMP)
• Mr Lyubomir Georgiev, Head of Coalition Policy Department of National Council of BSP
• Mr Miroslav Popov, Head of Ethic Issues and Work in the Areas with Population of Mixed Origin
• Ms Diana Boyadzhieva, Expert in Foreign Policy, European Integration and International Cooperation Department

Saturday, 4 July 2009

09:30-11:00 Round table discussions with representatives of the civil society

• Ms Diana Kovatcheva, Executive Director, Transparency International Bulgaria
• Ms Katia Hristoiva-Valtcheva, Program Director, Transparency International Bulgaria
• Ms Juliana Nikolova, Director, European Institute
• Mr Georgi Stoychev, Expert, Open Society Institute
• Mr Ognyan Zlatev, Manager, Media Development Center

11:20-13:00 Meeting with Media representatives

News Agencies:

• Ms Nevin Mustafova, journalist, Bulgarian News Agency (BTA)
• Ms Diana Tusheva, journalist, BGNES Agency
• Mr Yulian Hristov, Focus News Agency

Newspapers:

• Ms Maria Valcheva, Dneven Trud
• Ms Veselina Andreeva, Banker Newspaper
• Ms Lyuba Yordanova, Reporter Politics, Capital

TV Channels:

• Mr Emil Mildov, Chief Secretary, Bulgarian National Television
• Ms Marina Mateva, political reporter
• Ms Ventsislava Uzunova, political reporter, Re TV
• Ms Tanya Ivanova, political reporter, TV 7
• Ms Veronika Denizova, political reporter, EBF Business TV
• Ms Venetka Alexandrova, political reporter, MSAT
• Mr Radostin Rangelov, political reporter, Military Channel

Radio Channels:

• Mr Georgi Sofornov, journalist, Bulgarian National Radio Horizont
• Ms Bilyana Gavazova, journalist, Darik Radio

14.30-15.15 Meeting with the “Blue Coalition”

• Mr Konstantin Dimitrov
• Mr Stefan Tafrov
• Mr Nikolai Nikolov

15.15-16.00 Meeting with GERB (Citizens for European development of Bulgaria)

• Mr Orlin Ivanov, CEC member
• Mr Andrey Ivanov, Chair Person of the Sofia Municipality Council
• Ms Malina Edreva, Sofia Municipality Council councillor
• Ms Yordanka Fandakova, Vice-mayor; leader of 24 constituency
• Mr Orlin Alexiev, leader from “Studentski” quarter – Sofia
• Ms Antoaneta Apostolova, Mayor of quarter “Slatina” – Sofia

16:00-17:30 Deployment briefing – Teaming

Sunday, 5 July 2009

Election day Observation of opening, voting, closing and counting

Monday, 6 July 2009

09:00-10:00 Ad hoc committee meeting (Hotel Radisson)

10:30 Coordination meeting with ODIHR EOM

13:00 Press Conference (Hotel Radisson)

Afternoon Departure of the ad hoc committee

Appendix 5 – Bulgarian elections generally in line with standards, but more efforts needed to ensure integrity of process

Sofia, 06.07.2009 – Yesterday’s parliamentary elections in Bulgaria were generally in accordance with international standards, but further efforts are necessary to ensure the integrity of the election process and increase public confidence, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Parliamentary Assembly of the Council of Europe (PACE) concluded in a joint statement released today.

The observers noted that the elections provided voters a broad choice in a visible and active election campaign demonstrating respect for fundamental freedoms. But late changes to the election system, concerns about the effectiveness of law enforcement and the judiciary, as well as pervasive and persistent allegations of vote-buying, negatively affected the election environment.

“These elections were competitive and generally well run. But concrete measures are now needed to ensure full public confidence in the process, and particularly to eliminate electoral malpractices and strengthen the legal system,” said Ambassador Colin Munro, Head of the OSCE/ODIHR limited election observation mission.

“Despite grave imperfections linked to last minute changes in the electoral legislation and repeated allegations of vote buying that surrounded the 5 July elections, I am hopeful that Bulgaria will put the existing problems to rest and will fully justify its membership in the community of democratic values,” said Tadeusz Iwinski, Head of the PACE delegation.

The observers said election day overall appeared to proceed in a calm and orderly manner, although there were reported cases of attempted fraud involving absentee voting.

The full statement of preliminary findings and conclusions is available on the OSCE website at www.osce.org/odihr and the PACE website at http://assembly.coe.int/