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Legal Protection of the Right to Vote in Local Elections

 In Decision No. Up-676/19, U-I-7/20, dated 4 June 2020 (Official Gazette RS, No. 93/20), the Constitutional Court decided on a constitutional complaint by which the complainant, as an unsuccessful candidate for the office of mayor, challenged the judgment of the Administrative Court and the decision of the Municipal Council of the Šmarješke Toplice Municipality that dismissed her appeals against the report on the results of the mayoral elections due to irregularities in the election procedure. While deciding on the constitutional complaint, the Constitutional Court initiated proceedings to review the constitutionality of Articles 100, 101, and 102 of the Local Elections Act, which regulate the legal remedy for the protection of the right to vote before a municipal council and judicial protection of the right to vote before the Administrative Court.

The Constitutional Court stressed that the active and passive rights to vote in elections of members of the representative bodies of local self-government and mayors (at least if they are elected directly) are guaranteed as human rights by Article 43 of the Constitution. The principles of free, universal, and equal suffrage as well as the principles of direct and secret ballot, which are typical of the right to vote at the state level, namely fully apply also to local elections. The right to vote in local elections has a special legal nature as, despite being a personal right, it can only be exercised in a collective manner, i.e. together with other voters in an organised manner and according to a procedure that has been determined in advance. Due to these similarities, the requirements regarding its legal protection are similar to the requirements regarding the legal protection of the right to vote at the state level, which must be adapted to the special nature of such right in all cases. The purpose of the legal protection of the right to vote in local elections is primarily not to protect the subjective legal position of individual voters or candidates but to protect the public interest and constitutional values. These values comprise a fair election procedure (i.e. compliance with the election rules), the credibility of election results, and the trust of citizens in the fair conduct of elections. The objective character of the legal protection of the right to vote is also ensured in local elections by not taking into account all the established irregularities but only those that affected or could have affected the election results. Irregularities that could not have affected the results cannot be taken into consideration, except for such irregularities that, due to their quality (not their number), could have fundamentally affected the objective fairness of the elections (e.g. the discrimination of certain groups with regard to the existence of their right to vote). In such cases, it must be assessed whether, in view of the circumstances of the case in question and the established irregularities, a reasonable person would question the fairness of the election results.

The Constitutional Court held that the regulation of the procedure for filing an appeal before the municipal council in the Local Elections Act does not include all the essential elements that would have to be determined in order to ensure the effective exercise of the right to a legal remedy determined by Article 25 of the Constitution. The regulation, thus, does not specify which irregularities can be invoked by an appeal. Furthermore, the Local Elections Act does not contain any provisions regarding the conduct of the procedure before the municipal council adapted to the special nature of the right to vote in local elections (e.g. shorter procedural time limits, determination of the burden of allegation and the burden of proof, rules on the taking of evidence and conducting a public hearing) and it does not regulate the particularities of such procedure from the viewpoint of the division of competences within the framework of the decision-making on the appeal between the commission for public office, elections, and appointments and the municipal council. The criteria by which the municipal council must review violations as well as the competences of the municipal council when deciding on such violations are also not determined. In the opinion of the Constitutional Court, such a deficient regulation renders the effective exercise of the right to a legal remedy determined by Article 25 of the Constitution significantly difficult or even impossible. What is at issue is therefore not only the manner of the exercise of this human right but an interference with this right and consequently also with the right to judicial protection, which is guaranteed before the Administrative Court. Since there is no constitutionally admissible reason for such a deficient and vague regulation of the procedure before the municipal council, the Constitutional Court held that the regulation is inconsistent with the right to a legal remedy determined by Article 25 of the Constitution.

The Constitutional Court also established that the regulation of electoral disputes in local elections before the Administrative Court is vague and deficient. As it renders the effective exercise of the right to judicial protection impossible or significantly difficult, it entails an interference with this human right. As the Constitutional Court did not establish any constitutionally admissible reason that could substantiate such a deficient regulation, it held that the regulation at issue is inconsistent with the right to judicial protection determined by the first paragraph of Article 23 of the Constitution.

Although the established unconstitutionalities regarding the regulation of judicial protection before the Administrative Court and the appeal procedure before the municipal council refer to the deficiencies of the entire regulation of the legal protection of the right to vote, the Constitutional Court established only the unconstitutionality of Articles 100, 101, and 102 of the Local Elections Act. Since this is a special law that already regulates certain issues of the procedure with respect to the legal protection of the right to vote in local elections, the Constitutional Court located the established unconstitutionalities in its statutory provisions. It noted, however, that what is unconstitutional is primarily the fact that the legislation does not regulate everything necessary for the exercise of the right to an appeal and the right to judicial protection, and that it would be reasonable to regulate all issues concerning the procedure for the legal protection of the right to vote in local elections in the relevant law, which is a special law for the regulation of local elections. It determined a time limit by which the legislature must eliminate the established inconsistencies and adopted the manner of implementation of its decision, by which it provisionally determined only the most urgent rules for the adjudication of the Administrative Court in such judicial disputes.

With regard to the allegations stated in the constitutional complaint, the Constitutional Court held that the municipal council violated the complainant’s right to a public hearing determined by Article 22 of the Constitution when it excluded the public from the initial session at which it decided on the complainant’s appeal. It clarified that the complexity of deciding on an appeal against a report of the municipal electoral commission on the election results cannot be the reason for excluding the public from a municipal council session. The Constitutional Court further established that the municipal council violated the complainant’s right to equal treatment determined by Article 22 of the Constitution by preventing her and her legal representative from attending the session of the public office commission and the municipal council, while simultaneously permitting the attendance of the president of the electoral commission, whose decision was challenged by the complainant in her appeal before the municipal council. It also established a violation of the complainant’s right to judicial protection determined by the first paragraph of Article 23 of the Constitution as the municipal council and the Administrative Court refused to review the asserted irregularities that allegedly occurred in the election campaign and that allegedly affected the election results. The Constitutional Court therefore abrogated the judgment of the Administrative Court and the decision of the municipal council in the part that refers to the dismissal of the appeal (not the part that refers to the establishment of the election of the mayor), and remanded the case to the Administrative Court for new adjudication.