Up-135/19, U-I-37/19

Reference no.:
Up-135/19, U-I-37/19
Public Hearing in an Electoral Dispute
By Decision No. Up-135/19, U-I-37/19, dated 5 June 2019 (Official Gazette RS, No. 45/19), the Constitutional Court decided on the constitutional complaint of a complainant who challenged a decision of the Administrative Court, which dismissed his appeal against a decision of the City Council of the City of Ljubljana (hereinafter referred to as the City Council), by which the latter dismissed his appeal against an order of the Electoral Commission of the City of Ljubljana. The Administrative Court rebutted all of the allegations of the complainant except partially his allegation concerning the expenditure of budgetary funds for an election campaign. In the framework of this irregularity, which it established in the judgment, the Administrative Court deemed the replies of the Mayor of Ljubljana to three out of five questions that he stated in the October edition of the monthly newsletter Ljubljana, which is financed from budgetary funds, to entail electoral propaganda. However, it assessed that the established irregularity is not such that it could affect the election results if the election results are taken into consideration (the Mayor’s list of candidates obtained 23 seats in the City Council, the second best list 10, and the complainant’s list none). According to the Administrative Court, in terms of substance the established irregularity was not such as to affect the objective fairness of the electoral procedure or that because of it a reasonable person would have doubts as to the fairness of the election results.
The complainant, both as a voter and as a candidate, claimed in the constitutional complaint that by the challenged judgment the Administrative Court violated a number of constitutional rights, inter alia those determined by Articles 22, 23, 24, 25, and 43 of the Constitution. Allegedly, the Administrative Court committed the alleged violations by not holding a main hearing, although in the procedure before the Administrative Court the complainant allegedly requested one and in doing so explained for each proposed witness, and regarding his own testimony, why he proposed the hearing of such witness and what that person would testify. In the complainant’s opinion, the established electoral irregularity was important and, contrary to the position of the Administrative Court, significantly affected the results, as the Mayor’s list would obtain, in the event it obtained only several votes less, 22 (instead of 23) out of the 45 seats in the City Council and would no longer have a majority in it.
In assessing whether the challenged judgment of the Administrative Court violated the right to a public hearing, the Constitutional Court proceeded from the criteria for assessing the influence of electoral irregularities on the election results, on the basis of which it is apparent which relevant facts must be established in order for the mentioned assessment to be carried out. In assessing the effect of irregularities that entail violations of rules on the financing of an electoral campaign on the election results, one has to proceed from the fact that such are not irregularities that can be expressed numerically. Therefore, both the difference in the number of votes in favour of an individual candidate or a list of candidates and the weight and scope of all established irregularities and their nature and importance for the formation of the free will of voters and for respecting the equality of the candidates in an election must be taken into consideration. Once the relevant facts are established and all of the above is assessed from the viewpoint of a reasonable voter and reasoned, the effect of such an irregularity on the election results must be assessed.
The Constitutional Court established that the Administrative Court, despite having established that the allegations of the complainant were insufficiently concretised, established by itself the content of the copy of individual pages of the monthly newsletter Ljubljana, which the complainant enclosed with the appeal, and on the basis thereof assessed whether therefrom irregularities follow as to the financing of the electoral campaign of the “List of Candidates of Zoran Janković” in the local elections. Until the Administrative Court established which facts were at issue, it could not carry out a legal assessment thereof; therefore, it is incorrect to conclude that the electoral dispute proceedings only concerned questions of law, which is what the Administrative Court referred to. Since the Administrative Court assessed by itself whether there were irregularities and what kind of irregularities there were, without taking into account the arguments of the complainant, it is impossible to establish in this assessment a clear connection between what the complainant claimed with respect to the Ljubljana newsletter, which was allegedly biased in favour of the Mayor, while other candidates allegedly did not have the possibility to present themselves and their programmes in this newsletter (the equality of the right to vote, which can also affect the formation of the will of the voters), and what the Administrative Court established. Since the representative of the proposer of the list whose terms of office the complainant challenged did not participate in the proceedings, it remained unclear following the decision of the Administrative Court whether some facts were disputable in the proceedings before the Administrative Court and which facts these might be.
The Constitutional Court explained that consideration of allegations concerning unlawful public financing entails one of the questions that are of exceptional importance for the fairness of each electoral procedure, as such may distort the will of the voters and result in an inequality as to the position of candidates in the election; therefore, it is all the more important to allow all parties in an electoral dispute to orally present and contrast their positions as regards the established facts and to adopt a position as to their relevance for consideration of whether they correspond to the statutory definition of inadmissible financing, as well as their influence on the election results. In particular, the nature of electoral disputes requires in these instances that the courts decide once the main hearing is held. A public main hearing cannot be substituted for by the public publication of the operative provisions of a judgment on the notice board of the Administrative Court. Likewise, the principle of the efficiency of proceedings cannot be an independent or predominant reason for refraining to hold a main hearing, which in fact, with the addition of some other circumstances, can be relevant as an additional criterion together with other exceptional circumstances due to which it may be admissible to refrain from holding a main hearing.
The Constitutional Court rejected the constitutional complaint of the Administrative Court in the part that refers to the election of the Mayor of the City of Ljubljana, as it established that the procedural requirements for deciding whether the constitutional complaint was well founded insofar as it refers to the election of the Mayor were not fulfilled. In the part that refers to the election of the members of the City Council, the Constitutional Court abrogated the judgment of the Administrative Court and in this part remanded the case to the Administrative Court for new adjudication, as the Administrative Court violated the complainant’s right determined by Article 22 of the Constitution with its positions by which it substantiated why the electoral dispute was decided on without holding a main hearing.
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Type of procedure:
constitutional complaint review of constitutionality and legality of regulations and other general acts
Type of act:
statute individual act
Viljem Kovačič, Ljubljana
Date of application:
Date of decision:
Type of decision adopted:
Outcome of proceedings:
annulment or annulment ab initio rejection dismissal