Mp-1/12

Reference no.:
Mp-1/12
ECLI:
ECLI:SI:USRS:2013:Mp.1.12
Act:
The Order of the National Council of the Republic of Slovenia, dated 12 December 2012
Operative provisions:
The Order of the National Council of the Republic of Slovenia, dated 12 December 2012, stating that the office of Franc Kangler, elected member of the National Council, is not confirmed, is abrogated.
 
The office of Franc Kangler, member of the National Council, elected on 21 November 2012 in the elections to the National Council – representatives of local interests, in Maribor constituency No. 3, is confirmed.
Abstract:
The right to vote with regard to the election of members of the National Council entails the right to vote guaranteed by the second paragraph of Article 43 of the Constitution.
 
The protection of the right to vote with regard to the election of members of the National Council is regulated by the National Council Act, namely in the procedure for the confirmation of the offices of members of the National Council, [which is carried out] after elections have been held. In this procedure, irregularities in the election procedure and irregularities with regard to the determination of the election results that can affect the confirmation of the office can be alleged by an appeal filed before the National Council. Only election irregularities that are of such nature that they affect or could affect the election results, which consequently also affect the confirmation of the offices, can entail such irregularities.
 
The refusal to confirm the office of an elected member of the National Council can entail a refusal to recognise the officially determined election results. Such a decision can only be the result of consideration of an appeal filed before the National Council and the finding that during the elections irregularities occurred that affected or could have affected the election results. If the elections are not challenged by an appeal, the office cannot be disputable.
 
The refusal to confirm a term of office in instances when such is not disputable entails a decision of the National Council that has no basis in the Constitution or in the law. For such reason, it is arbitrary. It entails a violation of the passive right to vote of the elected candidate and of the active right to vote of voters determined by the second paragraph of Article 43 of the Constitution.
Password:
1.5.51.3.14 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - Decision in other proceedings - Annulment of a decision on the confirmation of the election of a deputy.
1.2.51.10.1 - Constitutional Justice - Types of claim - Capacity to file a petition with the Constitutional Court - Confirmation of the election of deputies - Affected candidate.
4.5.51.3.1 - Institutions - Legislative bodies - National Council - Composition - Election of members.
4.5.51.3.2 - Institutions - Legislative bodies - National Council - Composition - Term of office.
5.3.38 - Fundamental Rights - Civil and political rights - Electoral rights.
5.3.38.1 - Fundamental Rights - Civil and political rights - Electoral rights - Right to vote.
5.3.38.2 - Fundamental Rights - Civil and political rights - Electoral rights - Right to stand for election.
1.5.51.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
Legal basis:
Arts. 43, 43.2, 44, 96, Constitution [CRS]
Art. 50.3, National Council Act [NCA]
Document in PDF:
The full text:
Mp-1/12
21 February 2013
 
DECISION
 
 
At a session held on 21 February 2013 in proceedings to decide upon the appeal of Franc Kangler, Maribor, represented by law firm Odvetniška družba Čeferin, o. p., d. o. o., Grosuplje, the Constitutional Court
 
decided as follows:
 
 
1. The Order of the National Council of the Republic of Slovenia, dated 12 December 2012, stating that the office of Franc Kangler, elected member of the National Council, is not confirmed, is abrogated.
 
2. The office of Franc Kangler, member of the National Council, elected on 21 November 2012 in the elections to the National Council – representatives of local interests, in Maribor constituency No. 3, is confirmed.
 
 
REASONING
 
 
A
 
1. On 21 November 2012, the appellant was elected a member of the National Council. On 27 November 2012, he received a certificate from the State Election Commission regarding his election. At the constitutive session held on 12 December 2012, the National Council voted separately on the confirmation of his office as a member of the National Council and did not confirm it. The appellant alleges that such decision of the National Council was adopted without a legal basis and arbitrarily, therefore it allegedly violated his passive right to vote and the right to participate in the management of public affairs, as protected by Articles 43 and 44 of the Constitution, and the right to the equal protection of rights determined by Article 22 of the Constitution.
 
2. Allegedly, neither the National Council Act (Official Gazette RS, No. 100/05 – official consolidated text – hereinafter referred to as the NCA) nor the National Assembly Elections Act (Official Gazette RS, No. 109/06 – official consolidated text – hereinafter referred to as the NAEA), whose provisions apply mutatis mutandis with regard to questions that are not specifically regulated by the NCA, expressly determine the grounds or criteria on the basis of which the National Council can refuse to confirm the office of an elected member. In the opinion of the appellant, the refusal to confirm such office would only be possible on the basis of an appeal against a decision of the Election Commission submitted to the National Council on the basis of Article 49 of the NCA, which could have an influence on the confirmation of the appellant's office. From the materials for the constitutive session of the National Council and the minutes of the meeting, it is evident that such an appeal was not submitted to the National Council.
 
3. Although the law does not determine the grounds or the criteria on the basis of which the National Council could refuse to confirm the office of an elected member, the National Council should, in the opinion of the appellant, also act in conformity with Article 22 of the Constitution when confirming the offices of elected members. The decision not to confirm the office should have been substantiated by legal arguments; the decision should not have been taken on grounds that should not be taken into consideration. Due to the fact that allegedly neither the procedural nor the substantive prerequisites for deciding that the appellant's office was not confirmed were fulfilled, the decision of the National Council was allegedly completely arbitrary. Such decision was allegedly inconsistent with the highest constitutional values determined by Article 2 of the Constitution and it allegedly inadmissibly interfered with the already mentioned human rights and fundamental freedoms of the appellant.
 
4. In its reply to the appeal, the National Council explained that at its constitutive session after the elections were held, firstly, in conformity with Article 49 of the NCA and the Rules of Procedure of the National Council (Official Gazette RS, Nos. 70/08, 73/09, and 101/10), the Mandate and Immunity Commission (hereinafter referred to as the MIC) was elected, in which each interest group of the National Council has one member, in order to prepare everything necessary for the confirmation of the offices of the elected members. During the debate at the first session of the MIC, held on 12 December 2012, reservations were expressed with regard to the confirmation of the office of Franc Kangler. The non-economic activities interest group adopted a written standpoint that it felt obliged to act in conformity with moral and ethical standards and that by drawing attention to them it raises the credibility of the National Council; in light of the above it assessed that the office of Franc Kangler is morally and ethically disputable and proposed that a secret vote on the confirmation of such be carried out. In addition to the representative of this interest group, similar reservations were also expressed by the representatives of the interest group of employers and the interest group of employees at the first session of the MIC. With regard to the above, the MIC decided to propose that the National Council decide on all 38 undisputed offices together, and separately on each of the two disputed offices, including that of Franc Kangler. After the undisputed offices were confirmed, the interest group of local interests decided to convene an extraordinary session at which it decided to propose that the National Council decide on the two disputed offices by a secret vote. It also proposed that explanations should be presented to the National Council with regard to why these offices are disputable. The representative of the State Election Commission and Head of the Legal and Analytical Affairs Department of the National Council informed the National Council that no appeal had been filed against the election of Franc Kangler. At the secret vote, the National Council did not confirm the office of Franc Kangler, because 18 members of the National Council voted for confirmation of his office, whereas 19 voted against.
 
B
 
5. By not confirming the office of an elected member,[1] the National Council adopted a decision that would result in a new election being held.[2] [After] a decision that an office is not confirmed [is adopted] the affected person can invoke, before the Constitutional Court and on the basis of the third paragraph of Article 50 of the NCA, the protection of his or her rights. What is at issue is the protection of the right to vote, which is intended to protect the individual rights of voters and also to protect the legality of the elections, all of which should ensure that the representative authority is legally elected. Due to the specificities with regard to exercising the right to vote in comparison with other rights, the procedures for its protection are specifically regulated.[3] Such procedure with regard to the confirmation of the offices of the members of the National Council is regulated by Articles 49 and 50 of the NCA. With regard to the questions that are not specifically regulated by this Act, Article 10 of the NCA prescribes the mutatis mutandis application of the provisions of the NAEA. This entails that also in a dispute regulated by Articles 49 and 50 of the NCA, the principle to be applied is that only such established irregularities are taken into consideration with regard to elections that affected or could have affected the election result, which under the NAEA is applied with regard to the protection of the right to vote after elections have been carried out.[4] Therefore, also in the event an appeal is submitted to the National Council, by which, in conformity with the second paragraph of Article 49 of the NCA, it is admissible to challenge the decisions of election commissions that can affect the confirmation of an office, only such irregularities at the elections can be at issue that affected or could have affected the election result, which of course consequently also affect the confirmation of an office.
 
6. The refusal to confirm the office of an elected member of the National Council in fact entails a rejection of the officially established election result. Such a decision can be, with regard to the NCA, only a result of the examination of an appeal submitted to the National Council that leads to the finding that during the elections such irregularities occurred that it is not possible to recognise the election result otherwise established. Therefore, in deciding on such an appeal before an office is confirmed, the National Council must assess whether the alleged irregularities at the elections are substantiated. It must assess whether they are of such nature as to affect or to be able to affect the legality of the election result in a constituency. The National Council does not have the competence to assess in a discretionary manner whether an office is disputable, as is determined by the second paragraph of Article 50 of the NCA. An office can only be disputable on the basis of an appeal submitted by the entitled subjects and the submitted evidence on the essential irregularities in the election procedure or in the determination of the election result. Only if the National Council establishes the existence of the circumstances that the NCA and the NAEA determine to be [grounds] for an office to be disputable can the National Council adopt an order by which it decides not to confirm the office of a member that was otherwise elected.
 
7. The appellant was elected a member of the National Council, and the State Election Commission issued a certificate thereon. The appellant alleges that the challenged order of the National Council violates Articles 43 (the right to vote) and 44 of the Constitution (the right to participation in the management of public affairs). From older constitutional case law it namely follows that the right to vote regarding elections to the National Council is protected, due to the special right to vote of the members of interest groups, in the framework of the right determined by Article 44 of the Constitution.[5] However, in the electoral dispute in the framework of the elections to the National Council in 2007, the Constitutional Court allowed the possibility that the right to vote with regard to the elections to the National Council should be protected in accordance with the second paragraph of Article 43 of the Constitution.[6] However, in the Order by which the Constitutional Court rejected the petition for the initiation of proceedings for the review of the constitutionality of the regulation of the elections of the deputies of national communities[7] the Constitutional Court expressly adopted the position that the principles of the general and equal right to vote must be respected within a group of voters that has a special right to vote with regard to the election of such deputies. Such position logically requires that the Constitutional Court also adopt a new position with regard to the constitutional protection of the special right to vote with regard to elections to the National Council. It is true that what is at issue with regard to such elections is a special right to vote and an indirect type of elections, which are established in order to ensure the election of the representatives of the individual interests that comprise the National Council in conformity with Article 96 of the Constitution. However, the National Council is one of the constitutionally defined state authorities with competences as regards the legislative procedure, therefore it is clear that the protection of this right to vote must be based on the same principles as are otherwise envisaged by the Constitution with regard to the right to vote. Such entails that also its protection must be ensured within the framework of Article 43 of the Constitution. Consequently, the right to vote with regard to the election of members of the National Council is a right to vote ensured by the second paragraph of Article 43 of the Constitution.[8]
 
8. With regard to the information in the minutes of the meeting of the first session of the National Council, the National Council adopted the challenged order in the procedure for the confirmation of offices on the basis of the assessment that the office of the elected member at issue was morally and ethically disputable and without an appeal being filed on the basis of the second paragraph of Article 49 of the NCA. The regulation in force regarding the procedure for the confirmation of the offices of the members of the National Council does not envisage a dispute without an appeal being submitted to the National Council and it also does not state that the grounds on which the challenged order of the National Council was based can entail a circumstance that could affect the confirmation of such. Therefore, it is evident that the decision-making of the National Council on the confirmation of the appellant's office was not based on law. Such decision is arbitrary and entails a constitutionally inadmissible interference with the appellant's passive right to vote.[9] It also entails a constitutionally inadmissible interference with the active right to vote of the eligible voters who elected him.
 
9. With regard to the above, the appellant's appeal is well founded. By the challenged order, the National Council did not act in conformity with the second paragraph of Article 50 of the NCA. By rejecting the confirmation of the office of the appellant, it violated his passive right to vote determined by the second paragraph of Article 43 of the Constitution and the active right to vote of voters, which is also guaranteed by the same provision of the Constitution.
 
10. In light of the above, the Constitutional Court granted the appeal and abrogated the Order of the first session of the National Council, dated 12 December 2012, determining that the office of the appellant is not confirmed (point 1 of the operative provisions). With regard to the above, the Constitutional Court confirmed the office of appellant Franc Kangler (point 2 of the operative provisions).
 
C
 
11. The Constitutional Court adopted this Decision on the basis of the third paragraph of Article 50 of the NCA, composed of: Mag. Miroslav Mozetič, Vice President, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Mag. Marta Klampfer, Dr Etelka Korpič – Horvat, Jasna Pogačar, Dr Jadranka Sovdat, and Jan Zobec. Judge Dr Ernest Petrič was disqualified from deciding in the case. The decision was reached unanimously. Judge Sovdat submitted a concurring opinion.
 
 
Mag. Miroslav Mozetič
Vice President
 
 
Endnotes:
[1] See Report of the State Election Commission on the Election Results Regarding the Elections of the Members of the National Council, Official Gazette RS, No. 90/12.
[2] The second paragraph of Article 8 of the NCA determines that new elections are also carried out if, in the event of an appeal, the National Council or the Constitutional Court do not confirm the office of a member of the National Council and the State Election Commission establishes that new elections must be held.
[3] The procedure for the constitution of the National Council envisages the examination of and deciding on possible appeals of candidates, interest organisations, or local communities against the decisions of the Voting Commission that can affect the confirmation of the respective offices (the second paragraph of Article 49 of the NCA); the affected person has the right to file an appeal with the Constitutional Court against the decision of the National Council to not confirm an office, which can abrogate the decision of the National Council and confirm the office or dismiss the appeal (the third paragraph of Article 50 of the NCA).
[4] See Articles 106 through 109 of the NAEA.
[5] Such standpoint followed from the fact that the members of the National Council are elected on the basis of a special (active and passive) right to vote, as determined by Article 2 of the NCA. See Order of the Constitutional Court No. Up-681/02, dated 24 November 2002, Official Gazette RS, No. 105/02, and OdlUS XI, 298, Para. 5 of the reasoning.
[6] In Decision No. Up-3486/07, Up-3503/07, Up-3768/07, dated 17 January 2008 (Official Gazette RS, No. 19/08, and OdlUS XVII, 23), the Constitutional Court stated: "From the hitherto constitutional case law, it follows that the right to vote with regard to elections to the National Council is protected within the framework of Article 44 of the Constitution. However, due to the fact that the allegations of the complainant are manifestly unfounded, the Constitutional Court did not have to adopt a position on whether the alleged violation, were it committed, would also entail a violation of the right to vote determined by Article 43 of the Constitution." (Para. 13 of the reasoning).
[7] See Order of the Constitutional Court No. U-I-225/08, dated 15 January 2009.
[8] This is also stated by J. Sovdat in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije, dopolnitev – A [Commentary on the Constitution of the Republic of Slovenia: Supplement to the Commentary – A], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2011, pp. 712–713.
[9] "The passive right to vote includes the right of an individual to compete with others for election under the same conditions (i.e. the right to be elected or the right to be a candidate at elections). It also includes the right to be elected, which in fact entails the right of an individual to acquire office on the basis of the election results. In addition to the acquired office there also arises the third aspect of the passive right to vote, which includes the right of an individual to perform office acquired in such manner." This is stated by J. Sovdat, op. cit., pp. 711–712.
 
 
Mp-1/12-14
22 February 2013
Concurring Opinion of Judge Dr Jadranka Sovdat
 
 
I
 
1. The non-confirmation of the office of a councillor [i.e. a member of the National Council] without the elections of councillors being challenged by legal remedies regulated by law entails political arbitrariness. It is illegal and leads to a violation of the elected candidate's passive right to vote and the active right to vote of voters. This is the principal message of this Decision and I concur with it completely. The National Council should have confirmed the office. Because it did not do so, the Constitutional Court is called on to adopt a decision on the basis of an appeal against the decision of the National Council. The final say regarding the validity of elections must be reserved for an independent and impartial judge, not only in order for the judicial protection of the right to vote to be ensured (although mainly for this reason), but also in order to prevent such type of political arbitrariness of the representative body or some other collective state authority formed in elections (in the case at issue, the National Council). In conformity with the statutory regulation in force, the only legal decision that can be adopted was that adopted by the Constitutional Court.
 
2. I also concur with the interpretation by which the Constitutional Court clearly stated that the passive (and, of course, also the active) right to vote with regard to the elections to the National Council is constitutionally protected by the second paragraph of Article 43 of the Constitution. In such manner, the position that was clearly expressed by Judge Dr Franc Grad in his dissenting opinion to Decision Up-3486/07, Up-3503/07, Up-3768/07, dated 17 January 2008 (Official Gazette RS, No. 19/08, and OdlUS XVII, 23), also became the "official" position of the Constitutional Court. Due to the fact that I have already expressed my opinion on the constitutional reasons why I find this position to be correct in the commentary to Article 43 of the Constitution,[1] I hereby refer thereto in this aspect and will not repeat it here.
 
3. Although I agree with all of the above, in this concurring opinion I also wish to present to some degree the reasons that guided me during the decision-making­ – and that do not allow me to have doubt as regards the constitutionality of the fundamental standpoint that is expressed in the Decision – i.e. that "there is no judge without a plaintiff" and that this also applies in an electoral dispute, although its first part takes place before a political authority. This fact cannot be changed even by my otherwise firm position, which I have already stated several times,[2] regarding the numerous unconstitutionalities of the statutory regulation of the electoral dispute with regard to all types of national elections, European elections, and local elections; and also not by my equally firm position (which I also substantiated in a book on electoral disputes that is about to be published) on the fact that also Slovenia should have regulated ineligibility as is also done by foreign regulations and for which in the second paragraph of Article 82 of the Constitution there exists the constitutional basis, while the legislature has thus far not considered it to be necessary to also regulate by law the individual limitations of the passive right to vote. In a certain way, the constitutional background of the electoral dispute and the absence of the regulation of ineligibility nicely illustrate the case at issue.
 
II
 
4. In continental Europe, for a long time the position prevailed that only the parliament can be its own "electoral judge".[3] The changes in this area happened mainly in the period after the Second World War, when certain Western Europe states introduced judicial supervision over the elections. However, also at that time, most of them entrusted this task to constitutional courts, modelling themselves on the Austrian constitutional regulation of 1920. If we look at the regulation in European states, we can find that certain states retained supervision over the validity of elections to the parliament,[4] whereas others decided primarily in favour of two possible regulations regarding national elections: they either gave the role of the electoral judge directly to the constitutional court (e.g. France, and such regulation also exists in Austria), or maintained the parliament as the primary supervisor of elections, but reserved the last say for the constitutional court (e.g. the Federal Republic of Germany). With regard to the regulation of the electoral judge regarding the election of deputies (the third paragraph of Article 82 of the Constitution), the Slovene constitution-framers modelled themselves on the German regulation, which entrusted primary supervision over elections to the parliament, and allowed an appeal to the Constitutional Court against its decisions. Such regulation also applies with regard to the National Council, however not due to the will of the Slovene constitution-framers, because the Constitution does not regulate this matter, but due to the legislature's will. The legislature namely determined by Article 10 of the National Council Act (Official Gazette RS, No. 100/05 – official consolidated text – hereinafter referred to as the NCA) mutatis mutandis application of the provisions of the National Assembly Elections Act (Official Gazette RS, No. 109/06 – official consolidated text – hereinafter referred to as the NAEA), i.e. also of the provisions of Articles 106 through 109 of the NAEA, which regulate the protection of the right to vote after election day, and by the third paragraph of Article 50 of the NCA it regulated the appeal to the Constitutional Court.
 
5. A regulation in which the primary supervisor of elections is a political body conceals in itself special pitfalls; for such reason, I am distinctly not in favour of such.[5] The nature of the work of the representative body is above all political and is not adapted to decision-making in individual legal procedures. Consequently, there exists a danger that political aspects will prevail over the legal aspects also when deciding in the procedure ensuring supervision over elections. Moreover, the political authority thereby assumes the role of the "judge" in matters in which it is involved, whereby it is at the same time required to impartially decide on election irregularities that refer to the election of its own members. This, however, is not an appropriate guarantee that shadows of doubt will not remain over the election procedure. The election results must namely authentically reflect the expressed will of the voters in the electoral procedure in which the candidates campaigned under equal conditions for their votes in accordance with the electoral rules determined in advance. These votes are in the end reflected in the acquired political offices, which are distributed in accordance with the chosen electoral system and in conformity with the expressed will of the voters. The same is also true in the event of indirect elections, except that in such case the electors who elect the candidates assume the role of voters, such as is the situation with regard to the National Council. Therefore, from the viewpoint of the protection of the right to vote, indirect elections by electors do not of themselves require different requirements than those that apply to direct elections.
 
6. If a regulation leaves the primary supervision over elections to a political body and only allows [appellate] judicial protection before the Constitutional Court, which at the same time is the appellate authority and the electoral judge, it is necessary to ensure that already in the procedure before the political body there exists a meticulously regulated legal procedure for the verification of the validity of the elections and the authenticity of the election results. If such procedure is not clearly regulated, if the details regarding the legal remedy by which elections can be challenged are not regulated, if the authorisations (to annul elections or to establish a different result of elections) of such political body or its working bodies with regard to the verification of alleged election irregularities are not known, if the procedure does not respect the fundamental constitutional procedural guarantees of a fair legal procedure, and if a decision on such legal remedy is not substantiated, this can even have an influence on the role of the electoral judge. It can influence the role of the electoral judge so as to significantly reduce such role, because the electoral judge, who concurrently performs the role of appellate authority and electoral judge in the first and the last judicial instance, cannot avoid a decision that it must examine as the appellate authority. In such manner, the question can be raised whether we really have ensured judicial protection of the right to vote in conformity with the generally internationally established standards regarding electoral disputes today. Whereas in the German regulation, which Slovenia took as a model on the constitutional level, the decision-making procedure of the parliament for appeals with regard to the election of deputies is precisely regulated by law,[6] our legislature inadmissibly abandoned such regulation (in fact, it simplified it to the extreme by a brief regulation in its Rules of Procedure[7]) with regard to deputies. It then copied such completely inadmissible regulation such that it also applies to elections to the National Council[8] (and also to local and European elections).
 
7. If the decision-making procedure regarding appeals before the National Council was regulated by law, as it should be, it would be clearly evident already from the statutory regulation that interferences with elections are only possible on the basis of the fact that elections can be challenged by a legal remedy that is determined by law that at the same time also regulates all that must be regulated in connection therewith and with deciding on this legal remedy. Once the election day is behind us and the election results are determined, the will of the voters has been expressed – thereby they exercise their active right to vote, which is a human right. On the basis of the established election results, the political office in question is awarded, in conformity with the election formula determined in advance, to the candidate who won such office in the election. On the basis of such voting results, i.e. the votes of voters, the candidate’s passive right to vote, which after the confirmation of the candidacy entailed that the candidate has the right to partake in the political struggle for power as a candidate, assumes a new quality – the acquired office. Therefore, in such case the candidate’s passive right to vote, which is as well a human right ensured by the second paragraph of Article 43 of the Constitution, also includes the right to perform the office acquired in such manner.[9] If election irregularities occur due to which the candidate should not have acquired this right, it must be allowed to challenge the elections. For such reason, a legal remedy must be ensured by which it will be possible to claim these election irregularities. In the decision-making procedure for this legal remedy, all constitutional procedural guarantees must be respected, including the right of the candidate to make a statement regarding the alleged irregularities.
 
8. Due to the fact that the right to vote has a special legal nature and a voter can only exercise it simultaneously with all the other voters, although it is a personal right, and in an electoral procedure organised in advance[10] – this entails the collective manner of exercising the right to vote – and because the trust of voters in the fairness of the election procedure is of exceptional importance for the legitimacy of political power, protection of the right to vote after election day must be ensured in the public interest. For such reason, the legal remedy by means of which the elections may be challenged must be granted to both voters and all the candidates[11] who participated in the election. Therefore, elections can only be successfully challenged (meaning that they are either abrogated or the determined election results are different if the election irregularities can be remedied already in such manner) if what is at issue are such electoral irregularities that have or could have affected the election results, which is also emphasised by the Decision in the fifth paragraph of the reasoning.
 
9. If no one challenges an election, it must be deemed that the electoral procedure was carried out in conformity with the electoral rules and that the elected candidates acquired their offices, which are constitutionally protected as the passive right to vote; for such reason they also have the right to perform such office. Therefore, in the procedure for the confirmation of office they must be confirmed. Their confirmation also represents respect for the will of the voters, who by exercising this human right expressed it in the most democratic manner possible – in secret, free, and fair elections. A regulation that allows a political decision on the fact whether outside the Constitution and the law there exist reasons due to which it would perhaps nevertheless be substantiated to refuse the confirmation of an office although no one participating in the elections, i.e. voters or candidates, challenged the election would thus entail an inadmissible interference with the passive right to vote that the individual acquired in the elections in conformity with all the electoral rules, and with the active right to vote of voters. Both rights are protected by the second paragraph of Article 43 of the Constitution as human rights.
 
10. If today we were to allow the substantiation offered by the National Council – that due to moral and ethical reasons, although no one has challenged the election, it is necessary to refuse to confirm the office of the appellant, a special political exclusion of competitors after the election is over. This would mean that in the procedure intended to perform legal supervision of the constitutionality and legality of elections we abandon the law entirely and allow decision-making based only on how those who find themselves in the position to decide on the confirmation of the office assess the morality of the person elected, although, in fact, from the aspect of the ethical perspective of the situation, they may perhaps even really be entitled to provide such assessment. The doors of arbitrary, political decision-making thus would open fully, in a procedure that must be a legal procedure and that must, as such, be carried out in conformity with the legal rules, in a procedure that entails legal decision-making on the validity of elections at the first instance, and the constitutionality and legality of which will be assessed by the Constitutional Court, as the electoral judge, on the basis of an appeal. Such would entail that instead of a legal procedure, there exists complete political discretion in the decision-making at the first instance. And what is then the electoral judge to supervise – if the politicians have exercised such political discretion correctly? In such manner, also the electoral judge would be transformed into an exclusively political authority. It is not necessary to explain the inadmissibility of such a situation.
 
11. Therefore, it is, of course, not a coincidence that also the Code of Good Practice in Electoral Matters,[12] which allows primary supervision over elections to a political body as a fact, if such regulation has existed for a longer period of time in the state, simultaneously warns of the possibility of a political decision, due to which it qualifies such possibility as admissible only as a measure at the first instance against which judicial protection must be ensured,[13] i.e. judicial protection before the electoral judge, which in such case simultaneously performs the role of the appellate authority and the role of the judge deciding in the first and the last instance regarding protection of the right to vote. This role imposes the requirement that there exists comprehensive judicial protection to which all the participants in the elections must have access, i.e. both the voters as well as all the candidates in the election. In this judicial procedure the right to vote is protected, especially its already mentioned collective aspect, as is the fairness of elections; therefore, the access of participants in the elections to the electoral judge cannot be conditioned by their possible personal interests and benefits. Consequently, both the voters as well as all the candidates can request an assessment of all possible election irregularities. This refers to the existence of the right to vote and the electoral registers connected therewith, the validity of candidacies, compliance with the rules on and financing of electoral campaigns, as well as to compliance with the rules on voting at polling stations and on the determination of election results.[14] However, if no one invokes these electoral irregularities, the election results are final and those confirming the offices must respect the will of the voters expressed in the elections, which is a reflection of their active right to vote – the human right that developed through the centuries, due to its role and importance for a democratic state, into a fundamental political right of free citizens.
 
12. As I have already emphasised, for the significance of democratic elections it is especially important that voters have faith in the fairness of the electoral procedure, because it is the foundation of their legitimacy and thus the legitimacy of power. For such reason, also the selection of the system for resolving electoral disputes that is effective and powerful enough to ensure the peaceful consolidation of democracy is one of the most important decisions that a state must adopt when regulating the electoral system.[15] Since the legislature decided, modelling itself on the regulation governing the election of deputies, to keep the primary supervision over elections in the hands of a political body, it is even more important that such supervision be carried out in conformity with the legal rules envisaged in advance and not on the basis of political decisions of one kind or another. This is also why it is so important that the decision (at least the final one) is at all times subject to supervision by an independent and impartial judge – the guardian of the fairness of elections. If in the case at issue the Constitutional Court had not abrogated the decision of the National Council and had not confirmed the office [at issue], it would not have performed this role of the electoral judge.
 
III
 
13. It is characteristic of Slovene statutory regulation that it determines the least possible limitations of the passive right to vote. If we examine foreign regulations, as well as numerous decisions of the ECtHR, in which it assessed the admissibility of limitations of the passive right to vote, we can see that elsewhere the situation is significantly different. One of the most known limitations of the passive right to vote is ineligibility. This was also envisaged by the Slovene constitution-framers, except that the legislature has left it unregulated to this day. The second paragraph of Article 82 of the Constitution determines that the law is to establish who may not be elected a deputy. Thus, it gives the legislature the authorisation to enact limitations of the passive right to vote in order to achieve the aim of this constitutional provision. In reality, this aim is intended to ensure the integrity of the electoral procedure and the elected representatives of the people. Due to the fact that the Constitution itself requires such limitations of the right to vote, the constitutionally admissible aim of ineligibility is fulfilled (the third paragraph of Article 15 of the Constitution), and what remains for the legislature to do is to determine the limitations by law and to respect, in doing so, the general principle of proportionality (Article 2 of the Constitution). Without statutory regulation of the passive right to vote it is thus not admissible to limit the passive right to vote, and the statutorily determined limitations must pass the so-called strict test of proportionality, on the basis of which the admissibility of a limitation with a human right is assessed.
 
14. Even if instances of ineligibility are determined by law, such does not already entail that on such basis there can occur political arbitration with regard to which candidate has his or her office confirmed after the elections have been carried out and which not. Ineligibility entails that a person who otherwise fulfils the general conditions (citizenship, age, legal capacity), on the basis of which he or she has the active right to vote (except when what is at issue are persons whose right to vote – both active and passive – is denied due to a lack of legal capacity), does not have the right to vote due to specific limitations that are connected with the profession, activities, or positions that the person carries out or occupies.[16] Such entails that such person must be eliminated already from running for office. From the start, the Election Commission may not confirm the candidacy of an ineligible person. During the confirmation of candidacies, it is not yet possible to successfully challenge its decision, which is based on law, by legal remedies before the competent court (not even by a constitutional complaint). If the Election Commission confirms the candidacy of an ineligible person, voters and candidates can successfully challenge the elections after they have been carried out, if the fact that an ineligible person participated in the election could have affected the election result. If an appeal has been filed, this can thus be the subject of a dispute before [a specific] office is confirmed; however, also in such case the Constitutional Court would not be able to decide politically, but would have to decide legally in conformity with the legal rules determined in advance by law.
 
15. Due to the fact that our legislature did not in any manner determine the instances of ineligibility, I would like to briefly draw attention to the French regulation, which extended ineligibility also to instances that are not included in the presented definition of this term. The Code électoral,[17] which regulates elections in France, determines different examples of ineligibility for different offices; sufficiently illustrative is the ineligibility of a deputy of the French National Assembly, which is the general representative chamber. According to such, for instance, persons ineligible to be deputy in any district include persons who are currently or who were in the previous six months in such area judges, high officials of the state, bearers of individual public offices at the regional and departmental level, and the human rights ombudsman in all districts. Persons for whom a (criminal) conviction (final, of course) prevents them from being entered into the electoral register for a determined limited period of time are ineligible (meaning that due to a conviction they also do not have the active right to vote). [Furthermore,] the special examples of ineligibility are actually special sanctions for not complying with electoral rules and the rules connected therewith, especially those that refer to the declaration of the assets of elected officials and the financing of election campaigns. In such manner, a deputy who in the statutorily determined time limit does not submit to the special Commission for Financial Transparency of Political Life a declaration of their assets becomes ineligible for a period of one year. Persons who in the statutorily determined period of time do not submit their campaign accounts to the special National Commission for Campaign Accounts and Political Financing, persons whose campaign accounts have not been approved, and persons who exceed the upper statutorily determined amount for the election campaign become ineligible as well. It is the French Constitutional Court (the Conseil constitutionnel) that decides thereon; the one-year time limit is calculated from [the date of] the judicial decision on ineligibility. The French Constitutional Court decides on ineligibility with regard to the financing of the election campaign either simultaneously in an electoral dispute in which either the annulment of the elections due to irregularities (also) in the financing of the election campaign is required or upon the special request of the mentioned Commission if the elections are not challenged. What is essential with regard to both ineligibility caused by a final criminal conviction and ineligibility caused by a decision of the Constitutional Court is that the person is removed from office.[18]
 
16. In a state as small as Slovenia, it is even more necessary than in larger states to determine ineligibility in order for the integrity of the elected representatives of the people to be ensured, as well as the integrity of the electoral procedure. It would be preferable for the legislature to finally address the regulation of this field. However, let me repeat this one more time: Even if it does determine the cases in which ineligibility applies, this can only entail that these cases would be decided on in legal procedures and in a legal manner.
 
IV
 
17. Legal supervision of elections in which the electoral judge has the last say and the legally regulated instances of ineligibility are not a substitute for political responsibility and a culture of [proper] political behaviour. The latter two coexist with the former two. It is known from which perspective political responsibility is a constitutional category, by whom it may be invoked, and when. When what is at issue is the electoral procedure, those who insist on political responsibility in a democratic state during each election again are the voters (i.e. adult citizens of the state) – either directly or through electors (who are elected by them), who with regard to indirect elections are, as I have already mentioned, voters themselves. Of course, also each office holder can demonstrate his or her political responsibility by respecting the political culture in such a manner that he or she resigns from his or her office. However, neither political responsibility nor [proper] political culture entail the negation of law. On the contrary, they adhere to it. After the electoral procedure is complete, an integral part of this law is also the electoral dispute, which entails legal proceedings in which legal supervision of compliance with the electoral rules in the election procedure is carried out. This also applies, as I have already emphasised, when on the request of the entitled initiators of such proceedings this supervision is first carried out before a political body and only then before the electoral judge. Therefore, there is no space therein for politically arbitrary conduct; conduct in conformity with the Constitution and the law is required in an electoral dispute.
 
Dr Jadranka Sovdat
 
Endnotes:
[1] See J. Sovdat in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije, dopolnitev – A [Commentary on the Constitution of the Republic of Slovenia: Supplement to the Commentary – A], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2011, pp. 712–713.
[2] Partly also in the commentary on the third paragraph of Article 82 of the Constitution; see J. Sovdat, ibidem, pp. 112–1124, and J. Sovdat in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, pp. 783–787.
[3] Whereas in the United Kingdom the decision-making on electoral disputes was already in 1868 transferred from parliamentary committees to courts. See J. Harvey and L. Bather, The British Constitution, 3rd Edition, MacMillan St Martin's Press, London 1972, p. 60.
[4] However, in doing so, they regulated in a very detailed manner the procedure for decision-making on a legal remedy by which elections are challenged before the parliament; see, e.g. the Norwegian and Swedish regulation.
[5] On this matter, see J. Sovdat, Ustavno varstvo volilne pravice [Constitutional Protection of the Right to Vote], in: I. Kaučič (Ed.), Dvajset let Ustave Republike Slovenije, pomen ustavnosti in ustavna demokracija [Twenty Years of the Constitution of the Republic of Slovenia, The Significance of Constitutionality and Constitutional Democracy], Constitutional Court of the Republic of Slovenia, Ljubljana 2012, pp. 188–192.
[6] With regard to the election of the deputies of the Bundestag, these questions are regulated by the Law on the Scrutiny of Elections, accessible in English at:
[7] See the second and the fifth paragraphs of Article 13 of the Rules of Procedure of the National Assembly (Official Gazette RS, No. 97/07 – official consolidated text).
[8] See the second through fourth paragraphs of Article 6 of the Rules of Procedure of the National Council (Official Gazette RS, No. 70/08 et seq.).
[9] See J. Sovdat in: L. Šturm (Ed.), op. cit. 2011, pp. 711–712.
[10] Grad wrote about this already in 1992; see F. Grad, Novi volilni sistem z volilno zakonodajo [The New Electoral System and Electoral Legislation], Inštitut za javno upravo pri Pravni fakulteti v Ljubljani, Ljubljana 1992, pp. 39–40. See also Decision of the Constitutional Court No. Up-304/98, dated 19 November 1998 (OdlUS VII, 240).
[11] At this time I am leaving aside my serious doubts regarding the constitutionality of the statutory regulation in this respect, because they are not decisive for deciding in the case at issue.
[12] The Code of Good Practice in Electoral Matters was adopted by the so-called Venice Commission on 5 and 6 July 2002 at its 51st session. The European Court of Human Rights refers regularly thereto when interpreting Article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS No. 33/94, MP, No. 7/94), whereby its formally non-binding recommendations are changed into relevant requirements when what is at issue is the protection of the right to vote. See, e.g., the Grand Chamber Judgment in Scoppola v. Italy, dated 22 May 2012.
[13] See Procedural Safeguards, an effective system of appeal, Section II.3.3.a. of the Code and paragraph 94 of the Explanatory Report to the Code of Good Practice in Electoral Matters.
[14] All this is also emphasised in paragraph 92 of the Explanatory Report on the Code of Good Practice in Electoral Matters.
[15] A. Ayoub, Electoral Dispute Resolution Mechanisms, 4th European Conference of Electoral Management Bodies, "Fighting against electoral fraud – Complaints and appeals procedures", Strasbourg, 20 to 21 September 2007, publication of the European Commission for Democracy through Law, CLD-EL (2008)005, pp. 119–127, accessible at: <http://www.venice.coe.int/docs/2000/CDL-INF(2000)013-e.html>, p. 127.
[16] Cf.  J.-C. Masclet, Droit électoral (Election Law), Presses universitaires de France, Paris 1989, p. 71. Cf.  also F. Grad, Volitve in volilni sistem [Elections and the Electoral System], 2nd revised edition, Uradni list Republike Slovenije, Ljubljana 2004, p. 41.
[17] Accessible at:
[18] A known case that also the Court of Justice of the European Union dealt with (see the Judgment in J.-M. Le Pen v. European Parliament, C-208/03, dated 7 July 2005) is, for instance, the conviction of a known French politician who was convicted by the final judgment of a French criminal court of having committed the criminal offence of assault and public insult and on whom also a one-year prohibition of the exercise of the passive right to vote was imposed, the consequence of which was the termination of the office of a deputy of the European Parliament.
Type of procedure:
election of deputies, election of National Council members
Type of act:
other acts
Applicant:
Franc Kangler, Maribor
Date of application:
24.12.2012
Date of decision:
21.02.2013
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN03722