site.btaJudge Challenges Constitutionality of Prisoners' Disfranchisement

Bulgaria's Constitutional Court on Monday decided to institute a case on a petition from Sofia City Court judge Ivo Hinov, who challenges the constitutionality of the voter disqualification of persons serving custodial sentences.

Desislava Atanasova has been designated judge rapporteur for the case.

Hinov claims that all provisions of the Election Code that entail a denial of prisoners' right to vote must be declared contrary to the Constitution: both those that directly disfranchise such persons and those that deprive them of voting rights indirectly by their removal from the electoral rolls.

The judge points out that automatic disfranchisement by operation of law, without the court having discretion to determine whether this measure should be imposed in whole or in part for the entire duration of the penal sanction or for part of it or should not be imposed at all, is unconstitutional because, under the Constitution, suffrage is "universal, equal and direct" and fundamental rights are inalienable.

He further reasons that the constitutional provisions make it legally possible to deprive persons serving custodial sentences of voting rights, but this should be done pursuant to an individual judicial instrument, respecting the right to defence.

Another argument to this effect is that voter disqualification is not a penal sanction within the meaning of the Criminal Code, which is why the sentenced person does not have any legal remedies against it.

The petitioner recalls that on two occasions the European Court of Human Rights has found that Bulgaria has violated the European Convention of Human Rights precisely on account of this restriction but admits that only Parliament is competent to reconcile the conflict between the Constitution and the Convention by amending the basic law.

Hinov's petition was prompted by a traffic manslaughter case he tried. He even set the defendant's sentence to six years and eight months' imprisonment, but then decided to stay the first-instance proceedings and approach the Constitutional Court.