ITEMID: 001-93027
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PETKOV AND OTHERS v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Violation of P1-3;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The first applicant was born in 1941 and lives in Vratsa. The second applicant was born in 1944 and lives in Montana. The third applicant was born in 1945 and lives in Sofia.
7. In 1997, several years after the fall of the communist regime, the Bulgarian Government introduced the 1997 Access to Documents of the Former State Security Agencies and the Former Intelligence Department of the General Staff Act (“the Dossiers Act” – see paragraph 47 below), providing for, inter alia, the names of individuals who had worked for or collaborated with certain agencies mentioned in the Act (“the former State security agencies”) to be disclosed. This task was entrusted to a special commission (“the Dossiers Commission”), which had to gather information in the archives of these agencies and on the basis of that information publish reports containing the names of the individuals who had worked for or collaborated with them.
8. In the runup to the parliamentary elections on 17 June 2001, in response to debate concerning the participation of individuals who had allegedly collaborated with the former State security agencies, a clause – section 48(5) – was included in the newly adopted 2001 Election of Members of Parliament Act allowing parties or coalitions which had nominated such persons to withdraw their nominations on the basis of information indicating that they had collaborated with the former State security agencies (see paragraph 41 below).
9. On 5 June 2001 the Central Electoral Commission – the body overseeing the electoral process – decided that the relevant information could be provided by the Dossiers Commission either through the reports it was supposed to prepare or through certificates issued by it. On the basis of these documents and of a request by the party or coalition concerned, the relevant regional electoral commission could annul the candidate’s registration under the abovementioned section 48(5). The party or coalition had to nominate a replacement not later than seven days before the date of the elections.
10. In a final judgment of 13 June 2001 the Supreme Administrative Court, acting on an application from the Coalition for Bulgaria, one of the groups contesting the upcoming parliamentary elections, declared the Central Electoral Commission’s decision of 5 June 2001 null and void in so far as it provided for collaboration with the former State security agencies to be established on the basis of certificates issued by the Dossiers Commission. It held that the only lawful means of establishing that an individual had collaborated were the reports to be drawn up by the Dossiers Commission. The Dossiers Commission could issue only the documents provided for by law. In deciding that it could also issue certificates proving collaboration with the former State security agencies, the Central Electoral Commission had acted ultra vires, and its decision was therefore null and void.
11. All three applicants were registered as candidates in the parliamentary elections to be held on 17 June 2001. They ran on the ticket of the National Movement Simeon II, a coalition established in the spring of 2001. Prior to the election they were struck off the lists of candidates on account of allegations, based on certificates issued by the Dossiers Commission, that they had collaborated with the former State security agencies. 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.
12. The specific circumstances of each applicant are described below.
13. Mr Petkov was nominated as a candidate for Parliament and registered as such on 17 May 2001.
14. On 7 June 2001 the National Movement Simeon II, relying on section 48(5) of the 2001 Election of Members of Parliament Act and the Central Electoral Commission’s decision of 5 June 2001 (see paragraph 9 above and paragraph 41 below), requested the annulment of Mr Petkov’s registration. It did so on the basis of a certificate issued by the Dossiers Commission to the effect that he had collaborated with the former State security agencies.
15. In a decision of 8 June 2001 the Vratsa Regional Electoral Commission annulled Mr Petkov’s registration. It relied on the request made by the National Movement Simeon II and the certificate issued by the Dossiers Commission.
16. In a decision of 13 June 2001 the Central Electoral Commission refused to examine Mr Petkov’s appeal against the Vratsa Regional Electoral Commission’s decision. It reasoned that under section 48(5) of the 2001 Election of Members of Parliament Act, a party or coalition could request annulment of the registration of its candidates if information was revealed indicating that they had collaborated with the former State security agencies. Each party or coalition could freely assess the facts establishing the existence of such collaboration, and their assessment was not subject to review by the electoral authorities. The purpose of the law was to allow the party or coalition to nominate only candidates of impeccable moral standing. Since a candidate could withdraw his candidacy, it was logical for a party or a coalition to be able to withdraw it as well. Furthermore, it was not open to candidates themselves to challenge the electoral authorities’ decision in the matter.
17. On 17 June 2001, the day of the elections, after unsuccessfully requesting the Central Electoral Commission to reconsider its position, Mr Petkov lodged an application for judicial review with the Supreme Administrative Court. In a judgment of 21 June 2001 a threemember panel of that court set aside the Central Electoral Commission’s decision and declared the Vratsa Regional Electoral Commission’s decision null and void. It found that not only the parties and coalitions but also the candidates themselves had standing to seek review of the electoral authorities’ decisions to strike them off the lists. It went on to hold that, while section 23(3) of the 2001 Election of Members of Parliament Act expressly provided for judicial review of some of the Central Electoral Commission’s decisions, this did not mean that the decisions not expressly mentioned therein were not subject to such review, in view of the general rule that judicial review of administrative decisions could be limited only by statute, which was not the case here. It further held that the Central Electoral Commission had erred in accepting that these decisions fell within the regional commissions’ discretion. Under section 48(5) of the abovementioned Act, the striking of a candidate off the list had to be predicated on information to the effect that he or she had collaborated with the former State security agencies. In the absence of such information, strikingoff was precluded. The Dossiers Act provided that the only basis for proving collaboration with the former State security agencies was a report from the Dossiers Commission. The certificates issued by the Commission did not constitute such a basis, as already found by the court in its judgment of 13 June 2001 (see paragraph 10 above). The annulment of Mr Petkov’s registration on the basis of such a certificate was therefore null and void.
18. The same day Mr Petkov asked the Central Electoral Commission to reinstate him on the list of candidates, but apparently no action was taken.
19. Mr Georgiev was nominated as a candidate for Parliament and registered as such on 17 May 2001.
20. In a decision of 8 June 2001 the Montana Regional Electoral Commission, acting in response to a request made by the National Movement Simeon II the previous day, annulled Mr Georgiev’s registration as a candidate. It relied on section 48(5) of the 2001 Election of Members of Parliament Act (see paragraph 41 below). In a decision of 13 June 2001 the Central Electoral Commission refused to examine Mr Georgiev’s appeal against that decision, on the same grounds as in the case of Mr Petkov (see paragraph 16 above).
21. On 15 June 2001, two days before the elections, Mr Georgiev lodged an application for judicial review with the Supreme Administrative Court. In a judgment of the same day a threemember panel of that court set aside the Central Electoral Commission’s decision and declared the Montana Regional Electoral Commission’s decision null and void, giving the same reasons as in the case of Mr Petkov (see paragraph 17 above).
22. On 20 June 2001 Mr Georgiev asked the Montana Regional Electoral Commission to reinstate him on the list of candidates, but apparently no action was taken.
23. Mr Dimitrov was nominated as a candidate for Parliament and registered as such on 16 May 2001.
24. On 7 June 2001 the National Movement Simeon II, relying on section 48(5) of the 2001 Election of Members of Parliament Act (see paragraph 41 below), requested the annulment of Mr Dimitrov’s registration. It did so on the basis of a certificate issued by the Dossiers Commission on 4 June 2001 to the effect that he had collaborated with the former State security agencies.
25. In a decision of 9 June 2001 the Razgrad Regional Electoral Commission annulled Mr Dimitrov’s registration. It relied on section 48(5) of the 2001 Election of Members of Parliament Act, the decision of the Central Electoral Commission of 5 June 2001 (see paragraph 9 above and paragraph 41 below) and the certificate issued by the Dossiers Commission on 4 June 2001. In a decision of 13 June 2001 the Central Electoral Commission refused to examine Mr Dimitrov’s appeal against this decision, giving the same reasons as in the case of Mr Petkov (see paragraph 16 above).
26. The same or the following day Mr Dimitrov sought judicial review of the above decisions by the Supreme Administrative Court. In a judgment of 15 June 2001, two days before the elections, a threemember panel of that court set aside the Central Electoral Commission’s decision and declared the Razgrad Regional Electoral Commission’s decision null and void, giving the same reasons as in the case of Mr Petkov (see paragraph 17 above).
27. Mr Dimitrov asked the Razgrad Regional Electoral Commission to restore his name to the ballot paper, which it did in a decision of 16 June 2001, one day before the elections. However, on the same day the Central Electoral Commission set that decision aside, stating that the Supreme Administrative Court’s judgment was not yet final. Mr Dimitrov sought judicial review of the latter decision, and in a judgment of 19 June 2001, two days after the elections, the Supreme Administrative Court declared it null and void. It found, inter alia, that the Central Electoral Commission’s opinion that the court’s judgment of 15 June 2001 was not final was erroneous. It was final and binding, as expressly stated in section 23(3) of the 2001 Election of Members of Parliament Act (see paragraph 45 below).
28. On 21 June 2001 a fivemember panel of the Supreme Administrative Court rejected as inadmissible the Central Electoral Commission’s appeal on points of law against its judgment of 15 June 2001, reiterating that the judgment was final and not subject to appeal, as stated in section 23(3) of the 2001 Election of Members of Parliament Act (see paragraph 45 below).
29. On 4 July 2001 a group of fiftyseven Members of Parliament (MPs) acting on behalf of Mr Dimitrov requested the Constitutional Court to annul the election of the person who had replaced him on the ticket following his deregistration. The Plenary Meeting of the Supreme Administrative Court made a similar request on 5 July 2001.
30. In a decision of 9 July 2001 the Constitutional Court declared the MPs’ request admissible and allowed Mr Dimitrov, among others, to intervene in the proceedings as a third party. In a decision of 12 July 2001 the court declared the Supreme Administrative Court’s request likewise admissible and decided to join the proceedings in the two cases.
31. In a judgment of 2 October 2001 (решение № 17 от 2 октомври 2001 г. по к.д. № 13 от 2001 г., обн. ДВ бр. 87 от 9 октомври 2001 г.) the Constitutional Court, acting under Article 149 § 1 (7) of the 1991 Constitution (see paragraph 35 below), rejected the request. It held that the courts were entrusted with reviewing the decisions of the authorities, including the electoral authorities. In a State governed by the rule of law, the final judgments of the courts were binding on the parties to a case and had the status of res judicata. Therefore, the judgments of the Supreme Administrative Court setting aside and declaring null and void decisions of the electoral commissions were binding on the latter and had to be complied with. However, failure to comply with the judgments could only engage the State’s liability in tort and could not render the election of the person who had replaced Mr Dimitrov on the ticket illegal. That person’s name had featured on the ballot paper and on the list of candidates on the day of the election, having been included at the request of the National Movement Simeon II. The voters had used the ballot papers featuring her name, in accordance with the wishes of the coalition which had put her forward as a candidate.
32. Two judges dissented. They stated, inter alia, that as the decision of the electoral authorities to strike Mr Dimitrov off the list of candidates had been declared null and void, it had never legally existed. Therefore, his name should have been the one to feature on the ballot paper on the day of the election. The fact that the ballot paper had in fact contained another name did not make good the unlawful decisions of the electoral authorities and did not render the other person’s election lawful.
33. In October 2004 Mr Dimitrov brought an action under the 1988 State Responsibility for Damage Act (see paragraph 50 below). At the time of the latest information provided by Mr Dimitrov (15 February 2008), the proceedings were still pending at first instance before the Sofia City Court. Nine hearings had taken place and a further one was listed for 12 November 2008.
34. Article 120 § 2 of the 1991 Constitution provides that all natural and legal persons have the right to seek judicial review of any administrative decision which affects them, save as expressly provided by statute.
35. Article 66 of the Constitution provides that the lawfulness of parliamentary elections may be challenged before the Constitutional Court in a manner to be provided by a special statute. According to paragraph 3(3) of the transitional and concluding provisions of the Constitution, such a statute had to be adopted not later than three years after its entry into force. Under Article 149 § 1 (7) of the Constitution, the Constitutional Court rules on disputes concerning the legality of the election of an MP (see also section 12(1)(8) of the 1991 Constitutional Court Act). The only persons or bodies who have standing to refer a matter to the Constitutional Court are (i) a fifth of the two hundred and forty MPs, (ii) the President, (iii) the Council of Ministers, (iv) the Supreme Court of Cassation, (v) the Supreme Administrative Court and (vi) the ProsecutorGeneral (Article 150 § 1 of the Constitution; see also section 16 of the 1991 Constitutional Court Act). In addition, in 2006 the ombudsman was allowed to challenge before that court statutes which in his or her view are violative of the citizens’ rights and freedoms (Article 150 § 3 of the Constitution). Requests made by other persons, officials or bodies are inadmissible (опр. № 6 от 2 март 1993 г. по к.д. № 7 от 1993 г.; опр. № 7 от 19 октомври 1993 г. по к.д. № 20 от 1993 г.).
36. Article 7 of the Constitution stipulates that the State is liable for the damage caused by the unlawful decisions or actions of its organs and servants. In a binding interpretative decision of 22 April 2005 (тълк. реш. № 3 от 22 април 2005 г. по т.гр.д. № 3/2004 г., ОСГК на ВКС) the Supreme Court of Cassation, confirming the courts’ prior practice, observed that this provision did not provide a direct avenue of redress, but merely laid down a general principle whose implementation was to be effected through a statute. As no such statute was enacted following the Constitution’s entry into force in 1991, this function is performed by the 1988 State Responsibility for Damage Act (see paragraphs 50 and 51 below).
37. The 2001 Election of Members of Parliament Act (Закон за избиране на народни представители) was adopted by the National Assembly on 9 April 2001 and entered into force on 13 April 2001, the day of its publication in the State Gazette.
38. The Act, as in force at the relevant time (prior to a partial overhaul in April 2009), stipulated that elections to the Bulgarian National Assembly were held on the basis of a party list proportional system. Each party or coalition registered with the competent regional electoral commission – the body overseeing the election process in the relevant constituency – a list of candidates for each of the multiseat constituencies into which the country was divided (section 6(1)). Registration had to take place not later than thirty days before election day (section 45(2)).
39. After the election, the Central Electoral Commission – the body overseeing the election process in the entire country (section 23(1)) – determined the overall number of seats for each party or coalition on the basis of the total number of votes cast for the respective party or coalition. The Commission did so using the D’Hondt method, applied in accordance with rules adopted by the Commission prior to the elections (section 107(1)). After the elections, the Commission determined the number of seats for each party or coalition in each of the multiseat constituencies using the same method, taking into account the proportion of the votes cast (section 107(3)).
40. The Central Electoral Commission had to announce the number of votes cast for each party, and the allocation of seats among the parties, coalitions and independent candidates, not later than four days after the day of the elections (section 111(1)). It announced the names of the elected MPs not later than seven days following the day of the elections (section 111(2)).
41. Section 48(5), repealed in May 2002, provided:
“Parties and coalitions may request annulment of the registration of a person featuring on their candidate list in respect of whom information is revealed indicating that he or she collaborated with the former State security agencies. In such cases the parties and coalitions may propose a new candidate not later than seven days before the election date.”
42. This provision was complemented by paragraph 6 of the Act’s transitional and concluding provisions, also repealed in May 2002, which read as follows:
“Before registering lists of candidates with the regional electoral commissions, the central leadership of political parties and coalitions may request [the Dossiers Commission] to conduct checks on the individuals who have accepted nomination as candidates for Parliament on their lists. The checks must be carried out no later than seven days after the request.”
43. A new section 3(3), inserted in 2005 and repealed in April 2009, provided that the Security of Information Commission – a body overseeing the storage and use of classified information – checked whether the candidates for Parliament had had links with, inter alia, the former State security agencies or their predecessor or successor entities, and made this information available to the leadership of the political parties and coalitions which had nominated the candidates concerned.
44. Under section 23(1)(9) (former section 23(1)(7)), the Central Electoral Commission examines appeals against the decisions and actions of the regional electoral commissions. It may, in particular, review the regional commissions’ decisions relating to the registration of candidate lists (section 24(3)). It has to rule on all appeals within three days of their being lodged, and must deliver its decision immediately (ibid.).
45. Section 23(3) provides that certain decisions of the Central Electoral Commission are subject to judicial review by the Supreme Administrative Court. The application for judicial review has to be lodged within three days of delivery of the decision. The court has to rule on the application within three days of its being lodged, by means of a final judgment.
46. Section 112 of the Act (whose text coincides almost entirely with that of the provision it superseded, namely section 94(1) of the 1991 Election of Members of Parliament, Municipal Councillors and Mayors Act) provides that candidates for Parliament, and the central leadership of the parties and coalitions which have taken part in the elections, may challenge the lawfulness of the election before the Constitutional Court within fourteen days of the announcement of the election results. They cannot apply to that court directly; they must do so through the persons or bodies set out in Article 150 § 1 of the 1991 Constitution (see paragraph 35 above). It seems that this provision and its precursor have, apart from the case of Mr Dimitrov, been used only twice, when groups of MPs acting on behalf of individual candidates or political parties asked the Constitutional Court to annul the election of an MP. In both cases the court acceded to their requests (реш. № 8 от 6 май 1993 г. к.д. № 5/93 г.; реш. № 1 от 8 март 1994 г. по к.д. № 22/93 г.).
47. The 1997 Access to Documents of the Former State Security Agencies and the Former Intelligence Department of the General Staff Act (“the Dossiers Act”) regulated, inter alia, disclosure of the names of persons who had worked for or collaborated with the communistera State security agencies. Section 6(1) provided that the names of these persons were to be revealed in special reports issued by the Dossiers Commission. The reports had to be compiled on the basis of information gathered by a subcommission dealing specifically with that issue (section 6(2)). In April 2002 the Dossiers Act was repealed and the Dossiers Commission was abolished.
48. A new Act on access to and disclosure of documents and publication of Bulgarian citizens’ links with the State security agencies and the intelligence services of the Bulgarian national army (“Закон за достъп и разкриване на документите и за обявяване на принадлежност на български граждани към държавна сигурност и разузнавателните служби на българската народна армия”) was enacted in December 2006. The Act, which is still in force, coincides to a large extent with the previously repealed Dossiers Act.
49. The 1997 Supreme Administrative Court Act, adopted in 1997 and superseded by the 2006 Code of Administrative Procedure, regulated the procedure before that Court. Section 30(2) (now superseded by Article 177 § 1 of the Code) stipulated that judgments of the Supreme Administrative Court setting aside administrative decisions or declaring them null and void were binding on everyone.
50. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act”) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants committed in the course of or in connection with the performance of their duties.
51. Section 2(2) stipulates that the State is liable for the damage suffered by individuals on account of their being charged with a criminal offence, if (i) they are subsequently acquitted, (ii) the charges are dropped because the impugned act was not committed by them or does not constitute a criminal offence, or (iii) the proceedings against them were opened after the expiry of the relevant limitation period or despite an amnesty.
52. The Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“the Venice Commission”) at its 51st and 52nd sessions (56 July and 1819 October 2002) constitutes, in the Commission’s words, “the core of a code of good practice in electoral matters”. It reads, in so far as relevant:
“GUIDELINES ON ELECTIONS
...
2. Regulatory levels and stability of electoral law
...
b. The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.
...
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.
...
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.
...
EXPLANATORY REPORT
...
2. Regulatory levels and stability of electoral law
63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections.
...
3.3. An effective system of appeal
92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.
93. There are two possible solutions:
– appeals may be heard by the ordinary courts, a special court or the constitutional court;
– appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experience[d] with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second.
94. Appeal to parliament, as the judge of its own election, is sometimes provided for but could result in political decisions. It is acceptable as a first instance in places where it is long established, but a judicial appeal should then be possible.
95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the timelimits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Timelimits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A timelimit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.
96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.
97. It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission, or where the powers of different courts – e.g. the ordinary courts and the constitutional court – are not clearly differentiated.
...
98. Disputes relating to the electoral registers, which are the responsibility, for example, of the local administration operating under the supervision of or in cooperation with the electoral commissions, can be dealt with by courts of first instance.
99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections.
100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded.
101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated.
102. Where higherlevel commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.”
53. This report, published in Warsaw, Poland on 31 August 2001, describes in detail the unfolding of the parliamentary elections in Bulgaria in June 2001. It reads, in so far as relevant:
“...
IV. LEGISLATIVE FRAMEWORK
...
...some aspects of the current [2001 Election of Members of Parliament Act] are of concern. While some of these stem from the previous law, others pertain to newly introduced provisions.
1. Under [section 48(5)], candidate lists may be changed ... if “data” is discovered indicating that they collaborated with the former State security agencies. Parties and coalitions may make these changes up to seven days before election day. The possibility of such eleventh-hour changes to the lists posed problems not only for election administrators and courts, but also for parties and voters whose understanding of candidates running in the elections was undoubtedly affected.
2. The newly adopted [section 48(5)] provides that parties and coalitions may withdraw candidates in case “data” on the candidates is found in the files of the Commission on the Documents of the Former State Security Service. A clear definition of the term “data” is needed to provide guidance. There is a particular need to define clearly whether these data constitute full evidence for collaboration with the former State security services. The current legal provisions in the Election Law as well as in the Law on Access to the Documents of the Former State Security Service led to controversial withdrawals of candidates and a number of court cases.
...
Parties and coalitions may withdraw nominated candidates and nominate substitutes up to 30 days before the elections without having to abide by additional legal requirements. After that deadline, parties may withdraw a candidate from the ticket only if he or she is “permanently incapable to run in the elections” or if “data” exists that the candidate had collaborated with the former State security agencies. In these cases, parties may nominate a new candidate up to seven days before election day.
...
C. COMPLAINTS AND APPEALS
...
A particular, extended controversy related to changes to the candidate lists. Under the [2001 Election of Members of Parliament Act], candidate lists may be changed if “data” is discovered indicating that candidates collaborated with the former State security agencies. In this case, parties and coalitions can request the [Regional Electoral Commissions] to withdraw a name from their candidate lists. Accordingly, the [Regional Electoral Commissions] withdrew several candidates from various lists, eight of whom appealed the [Regional Electoral Commissions] decisions to the [Central Electoral Commission]. The [Central Electoral Commission] rejected the appeals, arguing that parties and coalitions have the exclusive right to evaluate the available data on collaboration with the State security agencies and to withdraw candidates. Furthermore, the [Central Electoral Commission] argued that candidates do not have the right to appeal the [Regional Electoral Commissions] decisions taken in accordance to [section 48(5)] of the [2001 Election of Members of Parliament Act], since this article does not establish the right of appeal for a candidate whose registration is annulled upon request of his/her party or coalition based on the existence of the above mentioned data on collaboration with the former State security agencies.
Some candidates appealed to the Supreme Administrative Court, which reversed the [Central Electoral Commission] decision two days before the election and reinstated these candidates on their original lists. The Supreme Administrative Court recognized the right of candidates to appeal their withdrawals, stating that they have a legal interest because their personal rights as candidates are affected by such measures. Furthermore, the Supreme Administrative Court argued that in such cases, [Regional Electoral Commissions] are obligated to examine the available data on collaboration with the former State security agencies and decide accordingly. However, the [Central Electoral Commission] instructed the respective [Regional Electoral Commissions] not to amend the candidate lists in question, stating that the decision of the Supreme Administrative Court was not in force, as it could be appealed within the next 14 days.
Following this [Central Electoral Commission] instruction, the candidates appealed to the Supreme Administrative Court again and were reinstated once more on 18 and 19 June, just after the elections had been held. The controversy looks set to continue, as the [Central Electoral Commission] has filed additional appeals, notwithstanding [section 23(3)] of the [2001 Election of Members of Parliament Act], which states that decisions of the Supreme Administrative Court are final in the context of election disputes. At any rate, [Central Electoral Commission] Decision No. 348 of 20 June proclaimed the names of elected candidates according to the candidate lists that did not contain the withdrawn candidates.
The later [Central Electoral Commission] decisions are of particular concern. These decisions disregard the rulings of the Court by postponing the settlement of the dispute until after election day. As a consequence, the candidates at issue could not participate in the elections. Furthermore, [Central Electoral Commission] Decision 348 disregarded the court ruling again, as it proclaimed the names of elected candidates regardless of the fact that some candidates were still seeking legal redress.
Additionally, the [Central Electoral Commission] stated that the rulings of the Supreme Administrative Court were not in compliance with the law and thus were not binding. The [Central Electoral Commission] argued in particular that the court did not have jurisdiction over the case at issue. While the jurisdiction of the court was controversial to some extent, this line of argument of the [Central Electoral Commission] is of great concern. It is not within the competence of the parties to determine whether the decision of the court is binding or not. This conflict between two senior State institutions raises serious questions regarding the application of the rule of law in Bulgaria in this instance and should be resolved by the Constitutional Court.
...
XII. RECOMMENDATIONS
...
1. The deadline for parties and coalitions to change candidate lists should be set further in advance of election day.
2. A clear definition of the term “data” under [section 48(5)] of the [2001 Election of Members of Parliament Act].
3. A cut-off date for resignation of candidates and withdrawal of parties and coalitions well in advance of election day would prevent lastminute changes to the ballot or the use of ballots that have not been updated. ...”
54. According to information available to the Court, the laws of at least seventeen States Parties to the Convention make provision for postelectoral remedies, whether before a special court or tribunal, the ordinary courts, or a constitutional court.
VIOLATED_ARTICLES: 13


ITEMID: 001-111995
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MIROSHNICHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Dmytro Vladyslavovych Miroshnichenko, is a Ukrainian national who was born in 1975 and lives in Lugansk, Ukraine. He was represented before the Court by Ms O. Seredynska, a lawyer practising in the same city. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice of Ukraine.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 July 2003 the applicant married Y. On 18 February 2006 their daughter was born.
On 20 November 2006 the applicant’s wife attempted to commit suicide by jumping from a balcony. According to the applicant, on the same date his parents-in-law arrived and took away his nine-month-old daughter, whom the applicant had asked their neighbours to look after shortly before the incident.
On 24 November 2006 the applicant’s wife died from her injuries without ever having regained consciousness.
On 11 January 2007 the applicant instituted proceedings in the Artemivsky District Court in Lugansk seeking to have his daughter returned to him. The applicant’s parents-in-law lodged a counterclaim seeking to have full custody of the child. They alleged, in particular, that the applicant had ill-treated Y. and had taken poor care of his daughter.
On 17 October 2007 the court found for the applicant. The court held that both the applicant and his parents-in-law were positively characterised and offered appropriate living conditions but that a father should be given priority over grandparents in determining the residence of a child. The court considered that it could not rely on various witnesses’ statements to the effect that the applicant had ill-treated his wife, because the witnesses were his wife’s friends, disliked the applicant and had never directly witnessed the events described by them.
On 21 May 2008 the Lugansk Regional Court of Appeal quashed this decision and found against the applicant. It noted that on 16 February, 16 April and 9 October 2007 the Child Care Board for the Artemivsky District Council (“орган опіки та піклування Виконавчого комітету Артемівської районної у місті Луганську Ради”) had recommended that the applicant’s daughter should remain resident with the applicant’s parentsin-law as a change of home could lead to her suffering serious psychological trauma. According to the medical records submitted, the applicant’s daughter suffered from residual cerebral insufficiency and showed signs of “early childhood nervousness” syndrome. A medical expert assessment performed by the Lugansk Regional Forensic Medical Bureau (Луганське обласне бюро судово-медичної експертизи) on 14 November 2007 had concluded that a change of home could aggravate her state of health. The court also noted that a criminal investigation into whether the applicant had been culpable in Y.’s death (in particular, whether he had caused or contributed to her suicide) was still pending. The first-instance court had also erroneously disregarded the witnesses’ statements to the effect that the applicant had had a negative attitude towards his wife and his family.
The applicant appealed, stating, inter alia, that his daughter’s illnesses had been diagnosed six months after she had been taken to live with his parents-in-law.
On 1 October 2008 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation.
On 10 November 2009 the Zhovtnevyy District Court rejected an application by the applicant’s parents-in-law, lodged in October 2008, to deprive the applicant of his parental rights and noted that they were preventing him from seeing his daughter. This decision was upheld on 1 February 2010 by the Lugansk Regional Court of Appeal.
On 19 September 2007 the Leninskyy District Prosecutor’s Office, after several refusals, instituted criminal proceedings against the applicant on suspicion that he had caused his wife to commit suicide.
In 2008 the same prosecutor’s office twice terminated the proceedings for want of evidence of a crime. It would appear that these decisions were quashed and the case remitted for fresh investigation.
On 9 September 2010 the criminal proceedings against the applicant were finally terminated for want of evidence of a crime. It was concluded that the applicant’s wife had been depressed, that she had been under the influence of the teachings of an esoteric sect and that she had jumped from the balcony. According to a medical expert report, Y. had had no injuries other than those resulting from her fall. This decision was not appealed against.
On 15 January 2009 the applicant instituted proceedings requesting contact with his daughter.
On 15 May 2009 the applicant modified his claims, requesting the award of a residence order regarding his daughter.
Between May 2009 and April 2010 twenty court hearings were scheduled. Nine of them were postponed because the defendants or their lawyers failed to appear or requested additional time to make copies of the case file or to prepare their case. Three hearings were postponed because both parties or their lawyers failed to appear.
In February-April 2010 the defendants did not appear at four subsequent hearings for various reasons. On 15 April 2010 the Artemivskyy District Court decided to consider the case in the defendants’ absence finding no serious reason to justify such absence, and found in favour of the applicant.
On 30 June 2010 the Lugansk Regional Court of Appeal quashed this decision and remitted the case for fresh consideration. The court noted that on 15 April 2010 the defendants had requested the postponement of the hearing because their lawyer was ill and the first-instance court had disregarded this request in breach of Article 6 § 1 of the Convention.
Between June 2010 and January 2011 seven hearings were scheduled, only one of which was postponed because the parties failed to appear.
On 25 January 2011 the Artemivskyy District Court found for the applicant and held that his daughter should live with him. According to the medical reports referred to by the court, since 2007 the child had had consultations with a neuropathologist and had been diagnosed with a number of nervous system disorders which had a prenatal origin. However, during 2009-2010 the child’s mental and emotional health had improved and her condition was now stable. Therefore, the court concluded that there was no threat that the child’s health would worsen because of a change of home. Moreover, it was considered that the absence of contact with her father might aggravate the child’s health problems.
On 19 May 2011 the Lugansk Regional Court of Appeal upheld the decision of 25 January 2011. It appears that these decisions were appealed against in cassation and by August 2011 the case was pending before the Supreme Court of Ukraine. The decision of 25 January 2011 became enforceable and there is no evidence that the defendants requested that its enforcement be postponed pending the cassation proceedings. No further information about these proceedings and about the current place of residence of the applicant’s daughter was provided by the parties.
1. The parents enjoy preferential right for their minor child to live with them.
2. The parents have the right to demand taking a minor child from any person who keeps him/her not in accordance with law or judicial decision.
3. The court may refuse to remove a minor child and to give him/her to the parents or one of them if it is established that this is contrary to the child’s interest.”


ITEMID: 001-87434
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MARCHOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1965 and lives in Kraków, Poland.
6. On 15 January 1997 the applicant was arrested on suspicion of homicide.
7. On 16 January 1997 the applicant was brought before the Kraków District Court (Sąd Rejonowy). The court remanded him in custody on charges of assault occasioning death. The court held that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged. In addition, the detention was necessary to ensure the proper course of the proceedings. The court also referred to the likelihood that a severe sentence could be imposed on the applicant.
8. During the investigation the applicant’s detention was extended twice. The last of the relevant decisions was given on 9 July 1997 by the Kraków Court of Appeal (Sąd Apelacyjny) and extended the applicant’s detention until 31 August 1997. The courts considered that the grounds originally given for his detention were still valid.
9. Between January and August 1997 the applicant made several applications for release. In particular, he asked to be released on bail. All those applications were dismissed, both at first instance and on appeal. The applicant stressed that in view of the witness testimonies his detention lacked any reasonable basis. In addition, his son had just started school and it was necessary for him to have regular contact with his father.
10. Neither the applicant nor his lawyer participated in any of the sessions in connection with his applications for release.
11. On 28 August 1997 the Krakow Regional Prosecutor lodged a bill of indictment with the Kraków Regional Court (Sąd Wojewódzki). The applicant was indicted on charges of participation in a fight resulting in homicide and using false documents. The bill of indictment included four other persons. The prosecutor stated that evidence from sixty-one witnesses needed to be obtained.
12. At a session held on 18 November 1997 the Kraków Regional Court extended the applicant’s detention until 30 April 1998. The court relied on the gravity of the charges against the applicant. It further stressed that the charges concerned five persons. In addition, extradition proceedings were pending against one of the accused. The court still needed to obtain evidence from sixty-one witnesses including three anonymous witnesses. Neither the applicant nor his lawyer was present at this session. An appeal by the applicant against this decision was dismissed on 18 December 1997 by the Kraków Court of Appeal. The court referred to the gravity of the charges against the applicant and the need to secure the proper conduct of the proceedings. In addition, the applicant’s arguments that he needed to take care of his family had been groundless since before his arrest he had not lived with them.
13. The trial began on 23 March 1998. Between 23 March 1998 and 13 July 1998 the Krakow Regional Court held thirteen hearings.
14. At hearings held on 14 April 1998 and 25 June 1998 the Kraków Regional Court extended the applicant’s detention until 30 June and 13 July 1998 respectively.
15. On 13 July 1998 the Kraków Regional Court gave judgment and sentenced the applicant to seven years’ imprisonment. It also extended the applicant’s detention until 31 December 1998. It pointed out that in view of the behaviour of the applicant and the other co-accused it had been necessary to secure the proper conduct of the proceedings.
16. On 1 October 1998 the applicant appealed against this judgment.
17. On 28 December 1998 the Kraków Court of Appeal gave a decision and extended the applicant’s detention until 15 February 1999.
18. On 14 January 1999 the Kraków Court of Appeal quashed the firstinstance judgment and remitted the case.
19. On 10 February 1999 the Krakow Regional Court again extended the applicant’s detention, this time until 30 June 1999. On 28 June 1999 the Kraków Regional Court extended the detention of the applicant and three other co-defendants until 30 September 1999. The court held that given the evidence collected so far by the courts there was a high degree of likelihood that the applicant had committed the offence with which he had been charged. In addition, there was a high risk of his absconding or going into hiding.
20. On 9 September 1999 the Kraków Regional Court gave a decision and remitted the case to the prosecution authorities in order to complete the investigation. The prosecutor appealed. On 13 October 1999 the Court of Appeal quashed the first-instance decision and ordered the Regional Court to proceed with the case.
21. Meanwhile, on 22 September 1999 the Kraków Regional Court again extended the detention of the applicant and the other co-defendants, this time until 30 December 1999. The court referred to the reasons given previously and held that they were still valid. In particular, there were good grounds for believing that if released the defendants might commit another serious crime. The applicant appealed, submitting that as the case had been transferred to the prosecution authorities, it would indicate that there was no “high probability that he had committed the crime with which he had been charged” since the prosecution needed to collect more evidence. On 13 October 1999 the Kraków Court of Appeal upheld the first-instance decision.
22. On 22 December 1999 the Kraków Regional Court gave a decision and extended the detention of the applicant and four other co-defendants until 29 February 2000. The court held that the grounds for keeping them in detention were still valid. In particular, there was a need to hear evidence from additional witnesses. At a hearing held on 25 February 2000 the court extended the applicant’s detention until 30 April 2000. The court repeated the reasons given previously. On 25 April 2000 the Regional Court again extended the applicant’s detention until 30 June 2000. On 17 May 2000 the Kraków Court of Appeal dismissed the applicant’s appeal against this decision. The court stressed that there was a likelihood that the charges against the applicant and his co-defendants would be proved and that the interests of the proper administration of justice justified the continuation of the detention. The applicant’s lawyer was present at this session.
23. On 30 May 2000 the Kraków Regional Court gave judgment and sentenced the applicant to five years’ imprisonment. It also extended the applicant’s detention. On 1 June 2000 the applicant lodged an appeal against the decision to extend his detention. On 21 June 2000 the Court of Appeal dismissed his appeal. The applicant’s lawyer was present at the session.
24. On 10 October 2000 the Kraków Regional Court extended the applicant’s detention until 10 January 2000. On 15 November 2000 the Court of Appeal dismissed the applicant’s interlocutory appeal and upheld the decision to extend his detention. The applicant’s lawyer was present at both court sessions. At a session held on 4 January 2001 the Kraków Court of Appeal extended the applicant’s detention and dismissed his application for release. The applicant’s lawyer was present at this session. At yet another session, held on 8 February 2001, the Court of Appeal dismissed the applicant’s request for release. The applicant’s lawyer was present at that session.
25. On 1 March 2001 the Kraków Court of Appeal gave judgment and acquitted the applicant. The court also ordered that the applicant be released from detention.
26. On 11 May 2001 the prosecutor lodged a cassation appeal against this judgment.
27. On 10 December 2001 the Supreme Court quashed the first– and secondinstance judgments and remitted the case to the Kraków Regional Court.
28. On 29 June 2005 the Kraków Regional Court gave judgment and sentenced the applicant to four years’ imprisonment.
29. On 1 July 2005 the applicant asked to be served with a copy of the judgment together with the reasoning. It was served on him on 14 October 2005. The Regional Court informed the applicant that the delay in serving the judgment was caused by the complexity of the case and the number of defendants involved.
30. The applicant appealed against the judgment of 29 June 2005.
31. At a hearing held on 25 January 2006 the Court of Appeal gave judgment. It quashed the Regional Court’s judgment and remitted the case.
32. It would appear that the proceedings are pending before the Kraków Regional Court.
33. The applicant claimed in his initial submissions that during the whole period of his detention on remand he had been held in solitary confinement.
34. According to the information provided by the Government, the applicant was placed in three different detention centres throughout the period of his detention: the Wadowice Prison, the Krakow Detention Centre and the Wołow Prison.
35. On 27 November 1997 the applicant, who had been classified as a difficult detainee, was placed separately in a cell for two prisoners until July 1998.
36. On 19 October 1998 the Nowy Sącz Prison penitentiary commission decided to include the applicant in the category of “dangerous” detainees, the so called “Ds”. The commission considered that the applicant had been aspiring to a role of an informal leader of prison subculture thus posing a potential risk of a riot in prison. The applicant lodged an interlocutory appeal against this decision. On 24 November 1998 the Wroclaw Regional Court upheld this decision.
37. On 21 October 1998 the applicant was transferred to the Wołów Prison, where he was placed alone in a cell with an area of 4.64 square metres, designated for dangerous inmates. The applicant had the right to an hour’s exercise every day. He was able to have visits from his family and his lawyer.
38. The applicant was subsequently transferred to the Kraków Detention Centre on 1 February 1999. He was placed in a separate cell with an area of 6.29 square metres. He could not participate in collective sport or cultural activities. However, he could have exercise under the supervision of two guards. Books were provided in his cell, where he could also listen to the prison radio. He received visits from his common law wife, his son, his sister and other members of the family.
39. On 25 March 1999 the Kraków Regional Court again upheld the decision of the penitentiary commission. The applicant’s lawyer lodged an interlocutory appeal. On 23 April 1999 the Regional Court dismissed the appeal.
40. On 19 April 1999 and 19 July 1999 the penitentiary commission gave decisions confirming the applicant’s status as a dangerous detainee. He did not appeal against these decisions.
41. On 30 August 1999 the penitentiary commission decided not to extend the applicant’s classification as a dangerous detainee. It is not clear whether the conditions of the applicant’s detention changed following this decision.
42. On 15 June 2000 the applicant was transferred to the Nowy Sącz Prison, where he was placed in a cell for three prisoners and was not subjected to pre-trial detention in conditions of solitary confinement.
43. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5


ITEMID: 001-85409
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: NILSSON v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: The applicant, Mr Sture Nilsson, is a Swedish national who was born in 1946 and lives in Sjulsmark. He was represented before the Court by Mr Jan Södergren, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1973 the applicant inherited thirty-three hectares of property from his father, of which twenty-eight hectares had been included in a joint hunting area in 1952. The provisions in force at the relevant time concerning joint hunting areas and joint hunting area associations were replaced in 1980 by a Joint Hunting Areas Act and in 2000 by a Game Conservation Areas Act (Lagen om viltvårdsområden; SFS 2000:592). By the latter Act, a joint hunting area was renamed a game conservation area.
The game conservation area to which the applicant’s property belonged comprised 5,567 hectares of land or 6,145 hectares including both land and water areas. Slightly more than a hundred and fifty properties or plots thereof were included in the area; many of them were very small, covering between one and three hectares. The applicant’s property was situated in the north-east corner of the area.
The applicant could hunt within the game conservation area, including on his own property, but was obliged to coordinate his hunting with that of the other hunting rights holders. They were all members of the Game Conservation Area Association in Norrfjärden, (Norrfjärdens viltvårds-områdeförening), (henceforth GCAA), and took part in the decisionmaking process.
The by-laws passed by the GCAA stated, among other things, that elk-hunting should usually be conducted in the form of so-called “community hunting”.
On 15 January 2001 the applicant requested that the GCAA agree to the exclusion of his property from the game conservation area. He wished to have his property registered as a “one calf area” which would allow for the shooting of one elk calf each year. He submitted that being a dairy farmer he had not participated in the hunt for about eight or ten years. Moreover, he found that a hunting party consisting of fifty-five hunters was too big and, referring to his age, fiftyfive at the relevant time, he preferred hunting on a smaller scale.
Since the GCAA objected to the request, the matter had to be decided by the County Administrative Board in Norrbotten County (Länsstyrelsen i Norrbottens Län), which by a decision of 9 February 2001 refused the applicant’s request and stated, in so far as relevant:
“... By letters received by the County Administrative Board on 29 January and 1 February 2001 respectively, you have requested that part of your property ... be excluded from the game conservation area. In support thereof you have stated that you intend to register a licensed elk-hunting area on the property and hunt individually thereon. This would provide you with more hunting opportunities...
Section 33 of the Game Conservation Areas Act is worded as follows:
Upon application by the property owner or the [GCAA], the County Administrative Board may grant the exclusion from a game conservation area of:
a property which due to a change in use or for other reasons lacks essential importance for the activity of the area;
a property, or several properties with the same owner, which can comprise a separate unit for game conservation, if the remaining properties in the [original] game conservation area can continue to constitute a suitable area of this kind.
... [the County Administrative Board observes that] no change in the way the property is used has come to light. Nor can it be considered that the property lacks essential importance for the activity in the area, since together with a number of other properties, it forms the basis of the activity, which is to promote game conservation through coordination of hunting. In addition, the size of the property is not such as to be a reason for it to be considered to lack essential importance for the activity in question. Accordingly, exclusion cannot be granted pursuant to section 33, subsection 1.1 of the Act on Game Conservation Areas.
Pursuant to section 33 of the Hunting Act (1987:259) elk may only be hunted after a licence has been issued by the County Administrative Board and within an area that the latter has registered (a licensed area). This does not apply if the hunting only concerns elk calves. The size and general nature of a licensed area must be such that it is suitable for hunting elk. The County Administrative Board may refuse to register an area as licensed ... if it does not allow for the shooting of at least one adult animal per year. The County Administrative Board considers that effective game conservation within the meaning of the Hunting Act cannot be conducted in an area smaller than what has been referred to here and referred to in section 33 of the Hunting Act. Likewise, an area of this kind cannot comprise a separate unit for game conservation pursuant to section 33, subsection 1.2. of the Act on Game Conservation Areas.
The notion “game conservation” is defined in section 4 of the Hunting Act:
The game must be conserved so as to
protect the game species that belong to the game population in the country and naturally occurring bird species that are temporarily in the country; and
promote appropriate development of game stocks, taking into account public and private interests.
Game conservation includes using special measures to ensure that game receives protection and support and that hunting is adapted to the supply of game. The property owner and the person holding the hunting rights are responsible for making sure that the measures are carried out and that adaptations are followed.
Of course, since your property consists of a unit that is larger than 20 hectares, it can be registered as a “one calf area” However, it cannot thereby be considered to comprise a separate unit for game conservation pursuant to the Act on Game Preservation Areas.
Accordingly, [your] property] cannot be excluded pursuant to section 33, subsection 1.2. of the Act on Game Preservation Areas.
As regards the question whether a decision to refuse [your request] contravenes [the proportionality principle contained in] Chapter 2, section 18 of the Instrument of Government and the European Convention on Human Rights, the County Administrative Board finds that there are strong reasons to support the view that it would be detrimental to effective game conservation, including elk hunting – which must be considered to be an important public interest – if existing game conservation areas were to be divided into smaller sections. ...
You have not shown how game conservation could be improved if [your] request to exclude the property was granted. The County Administrative Board considers that even if [your] property is part of the game conservation area, game conservation can be carried out, either together with the other partners and hunters, or separately for the individual property. Thus, there are no limitations on the right of disposition over the property in question. On the contrary, there is an important public interest in retaining the property in question as part of the game conservation area. That will maintain the aim of the property owners in forming the area, namely to allow game conservation to be carried out in an efficient manner. Game conservation — primarily conservation of the elk stock — is only efficient when it can be carried out in a continuous area that is not divided. In respect of large game, hunting is an important part of game conservation. Properly conducted hunting based on biological grounds can regulate the numbers of these stocks, so that the requirements of the Hunting Act regarding preservation and promotion are fulfilled. ...”
On an appeal, by a judgment of 27 June 2001 the County Administrative Court (Länsrätten i Norrbottens Län) upheld the County Administrative Board’s decision.
Leave to appeal was refused on 12 February 2003 by the Administrative Court of Appeal (Kammarrätten i Sundsvall) and on 16 February 2005 by the Supreme Administrative Court (Regeringsrätten).
According to Chapter 2, section 1 of the Instrument of Government (Regeringsformen), which is part of the Swedish Constitution, all citizens are guaranteed, inter alia, freedom of association in their relations with public institutions. This freedom is defined as freedom to associate with others for public or private purposes. Chapter 2, section 2 stipulates that all citizens are protected, in their relations with public institutions, against any coercion, such as to belong to a political association, religious community or other association with opinions of a political, religious, cultural or other such nature.
The rights and freedoms referred to in Chapter 2, section 1 may be restricted by law to the extent provided for in Chapter 2, sections 13-46 (Chapter 2, section 12). Restrictions may only be imposed to achieve a purpose which is acceptable in a democratic society. A restriction may never go beyond what is necessary having regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy. No restriction may be imposed solely on grounds of a political, religious, cultural or other such opinion (ibid.). According to Chapter 2, section 14, freedom of association may be restricted only in respect of organisations whose activities are of a military or quasi-military nature or constitute persecution of a population group of a particular race, colour or ethnic origin. The negative freedom of association provided for in Chapter 2, section 2 may not be restricted.
The peaceful enjoyment of possessions is protected in, inter alia, the Instrument of Government. Pursuant to Chapter 2, section 18, the property of every citizen shall be so guaranteed that no one may be compelled by expropriation or other such disposition to surrender property to public institutions or to a private subject, or to tolerate restrictions by public institutions on the use of land or buildings, other than where necessary to satisfy pressing public interests.
A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed compensation for the loss. Such compensation shall also be guaranteed to a person whose use of land or buildings is restricted by public institutions in such a manner that the ongoing use of land in the affected part of the property is substantially impaired, or the value of that part of the property suffers significant depreciation. Compensation shall be determined according to principles laid down by law (ibid.).
Hunting is regulated in, inter alia, the 1987 Hunting Act (Jaktlagen; SFS 1987:259). The right to hunt game is attached to the ownership of real property. Thus, section 10 of the Act expresses the general principle that it is the person who owns a piece of property who has the right to hunt on that property. It is, however, possible to convey and let hunting rights, with the result that the ownership of land and the right to hunt may be vested in different persons (see sections 14-16).
The right to hunt may be exercised only to the extent that hunting is acceptable from the point of view of game conservation. Thus, all game is in principle protected and may be hunted only if this is permitted under the Act or under provisions or decisions based on the Act (section 3).
Specifically with respect to elk hunting, section 33 of the Act establishes the main rule that, with the exception of the hunting of elk calves, this may take place only if licensed by the relevant County Administrative Board and within an area that has been registered by the Board for this purpose (a socalled “licensed area”). Further, it follows from section 33 that a licensed area shall be of such a size and character that it is suitable for elk-hunting. The County Administrative Board may refuse to register an area as a licensed area if it does not allow for the shooting of at least one adult animal per year. However, even if these conditions are not met, an area may be registered as a licensed area if there are special reasons for this. In addition, an area may be registered as a licensed area allowing for one calf to be shot annually, if the size of the area amounts to at least 20 hectares.
The right to hunt is connected with a general obligation to conserve and protect the game within one’s property. Where the right to hunt has been conveyed or let, this obligation lies with the landowner and hunting right holder together. Section 4 of the Act provides, inter alia, that measures shall be taken for the purpose of conserving existing species of wild game and in order to promote appropriate development of game stocks, taking into account both public and private interests. Game conservation includes an obligation to use special measures to ensure that game receives protection and support and to adapt hunting to the supply of game (ibid.).
With the purpose of coordinating hunting and facilitating game conservation, Swedish legislation has for a long time provided land owners with the opportunity to join their properties into joint hunting areas by a unanimous or qualified majority decision. The 1938 Act on the Right to Hunt (Lagen om rätt till jakt; SFS 1938:274) contained provisions on joint hunting areas and joint hunting area associations. These provisions were replaced by a new Act which entered into force on 1 January 1981, the Joint Hunting Areas Act 1980 (Lagen om jaktvårdsområden; SFS 1980:894). This Act was in turn replaced by the Game Conservation Areas Act 2000 (Lagen om viltvårdsområden; SFS 2000:592), which entered into force on 1 January 2001. The provisions of the new Act are in many respects the same as, or similar to, the provisions contained in the old Act. A joint hunting area association existing at the time of the entry into force of the new Act shall be regarded as a game conservation area association in accordance with the new Act (see the transitional provisions of the 2000 Act).
The 2000 Act provides that two or more properties or parts of properties may be joined into a game conservation area, for the purpose of promoting the conservation of game through coordination of hunting and measures to protect the game (section 1). Where this is done, the property owners concerned shall form a game conservation area association (viltvårdsområdeförening). Those who own land incorporated in such an area are members of the association (section 4).
The provisions of the Act are equally applicable to publicly and privately owned land. However, according to section 2 of the Act, a game conservation area may not include certain land owned by the Swedish State where the Sami population has a right to hunt according to the Reindeer Herding Act (Rennäringslagen; SFS 1971:437). Also with respect to other land, public or private, the right of the Sami to hunt enjoys special protection. Thus, section 2 of the Act also provides that the formation of a game conservation area may not entail limitations on the hunting rights of the Sami.
The relevant County Administrative Board decides on the establishment of a game conservation area upon application from one or several of the property owners concerned (sections 3 and 9). For such an area to be formed, at least four-fifths of the owners, representing at least four-fifths of the total area, must agree (section 7). Another requirement is that the creation of the area shall promote the preservation of the kind of wild game that the coordination is intended to preserve and protect. Finally, it is required that the area be suitable with regard to its size and geographical position. However, no property can be included in a game conservation area if, due to its size or use, it lacks importance for the activity within the area (section 8). Conversely, land that is capable of being retained as a separate unit for the purpose of game conservation cannot be included in the game conservation area without the owner’s consent (ibid.).
As a general rule, the question of whether to form a game conservation area shall be investigated under the guidance of a person appointed by the County Administrative Board (section 11). Taking into account the application documents and other relevant information, the authorised official (förrättningsmannen) shall put forward proposals regarding which properties should be included in the area and which by-laws should apply to the association (section 12). These proposals shall be dealt with at a meeting, to which the property owners shall be summoned, and they shall be given the opportunity to submit their opinions and present their own investigations (sections 13 and 14). Thereafter, the official shall present a written statement expressing his or her opinion as to whether a game conservation area should be formed and, if this is the official’s view, propose which properties should be included in the area and also put forward proposals on by-laws for the association (section 15). The proposals and other relevant documents shall then be accessible to the property owners concerned for one month so that they may examine them and submit any views that they may have. Following the expiry of this period, the official shall provide the County Administrative Board with all the documents and such objections as may have been submitted, so that the Board may determine the matter (ibid.).
The game conservation area association shall have a board (section 18). Members of the association are entitled to participate in the decision making by exercising their right to vote at general meetings (sections 19 and 20).
The County Administrative Board shall confirm the by-laws of the association with regard to certain aspects (sections 3 and 16). The Board shall also confirm amendments of the by-laws with regard to those aspects (sections 16 and 17).
If stipulated in the by-laws and provided it is in conformity with the hunting legislation, the association may decide that elk and certain other game may be hunted within the whole area (“area hunting”; områdesjakt) and only together with other hunting right holders within the area (“community hunting”; gemensambetsjakt), if this is deemed necessary having regard to the conservation of game (section 23). If such a decision is taken, the association may also decide on the details of the hunt, such as the number of animals that may be shot. It may also decide that participation in “area hunting” and “community hunting” shall require a hunting licence (section 25). According to section 26, if stipulated in the by-laws, the association may decide to suspend from “area hunting” and “community hunting”, for a maximum period of one year, a member or hunting right holder who has broken the rules regarding such hunting. The by-laws may contain a requirement that hunting rights may not be conveyed or let without the consent of the association (section 27). The association may decide that fees should be paid for hunting and for game that is shot (section 29).
A property owner who for reasons of conscience is opposed to hunting, is entitled, upon request, to have his property exempted from “area hunting” and “community hunting” (section 28).
Upon application by the board of the associations concerned, the County Administrative Board may decide to join several game conservation areas together into one area or to divide a game conservation area into several smaller areas (section 31). As regards such changes, the same conditions apply as for the formation of a game conservation area (ibid.).
Further, upon application by the board of the association, the County Administrative Board may decide to join a property to the game conservation area, provided the owner of the property agrees to this (section 32).
The exclusion of an individual property from a game conservation area is governed by section 33 of the Act, which deals with two types of situations. Thus, the County Administrative Board may decide to exclude a property upon application by the property owner or the association, if, as a result of a change in its use or for other reasons, it has lost its essential importance for the activity within the area (subsection 1, point 1). If the property owner and the association agree on the exclusion, the association may take the decision instead of the County Administrative Board. According to the preparatory work, this provision aims, in particular, at situations in which a fundamental change has occurred in the use of the property, for example if it has begun to be used for recreational or industrial purposes (Government Bill 1999/2000:73, p. 50). Further, upon application by the property owner or the association, the Board may decide to exclude a property from the area, provided the property is capable of forming a separate unit for game conservation and provided the other properties within the area can continue to exist as a suitable area for game conservation (sub-section 1, point 2).
The possibility of excluding properties has been expanded in the 2000 Act as compared to the Joint Hunting Areas Act 1980, which it replaced. In the 1980 Act, exclusion was possible in the situations referred to in section 33, sub-section 1, point 1 of the 2000 Act, but not in the situations referred to in section 33, subsection 1, point 2.
The County Administrative Board may decide, under certain conditions, that a game conservation area shall cease to exist and that the association shall be dissolved (section 34).
A decision by the general meeting of the game conservation area association or by its board may be appealed against by those affected by the decision to the County Administrative Board, provided the decision relates to one of several enumerated issues, such as hunting and game conservation, membership of the association, suspension from “area hunting” and exclusion from the game conservation area in accordance with section 33, sub-section 2 (section 37).
A decision by the County Administrative Board may be appealed to the relevant County Administrative Court (section 38). Subject to the grant of leave to appeal, a further appeal lies to the relevant Administrative Court of Appeal and, in the final instance, to the Supreme Administrative Court. Leave to appeal shall be granted if it is of importance for guidance on the application of the law that a superior court considers the appeal or if there are extraordinary reasons to examine the appeal. In addition, an administrative court of appeal shall grant leave to appeal if reason exists to amend the conclusion of the first instance court (sections 34 a and 36 of the Administrative Court Procedure Act; förvaltningsprocesslagen; SFS 1971:291).