REPUBLIKA SLOVENIJA
USTAVNO SODIŠČE
Up-2385/08
9 September 2008
DECISION
At a session held on 9 September 2008 in proceedings to decide upon the
constitutional complaint of the Lista za čisto pitno vodo [List for Clean Drinking
Water], Ljubljana, represented by Mitja Bartenjev, attorney in Ljubljana, the
Constitutional Court
decided as follows:
1.
Supreme Court Judgment No. II Uv 3/2008, dated 15 September 2008, is
abrogated, the Decision of the Electoral Commission of the 1st constituency
No. 041-3/2008, dated 1 September 2008, is annulled.
2.
The list of candidates, which is called the “List for Clean Drinking Water”
and which was submitted in the 1st constituency on 20 August 2008, is
confirmed.
3.
The National Electoral Commission shall implement the decision referred
to in the previous point by placing the list of candidates, which is called “List
for Clean Drinking Water”, last on the list of confirmed lists of candidates in
the 1st constituency.
Reasoning
A
1. The Electoral Commission of the 1st constituency (hereinafter referred to as the
EC) rejected the list of candidates, which is called “List for Clean Drinking Water”
(hereinafter referred to as the List), because it established that three of the fifty
voters who supported the List do not have a permanent residence in the
constituency. With regard to the third paragraph of Article 43 of the National
Assembly Elections Act (Official Gazette RS, No. 109/06 – official consolidated
text and 54/07 – hereinafter referred to as the NAEA), the list of candidates was
allegedly not compiled and nominated in accordance with the law. By the
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challenged judgment the Supreme Court rejected the appeal of the List’s
representative as unfounded. It established that the person submitting the List
was requested to remedy its formal deficiencies within a specifically determined
deadline but failed to do so before the decision rejecting the list of candidates had
been issued. Consequently, the Supreme Court ruled that the EC's decision to
reject the list of candidates under discussion in accordance with Article 56 of the
NAEA was correct and lawful. Therefore, the Supreme Court rejected all the
objections of the complainant that, in the given context, could not have influenced
the Supreme Court to adopt a different decision.
2. The complainant alleges a violation of the right to vote determined in Article 43 of
the Constitution and the right to participate in the management of public affairs
determined in Article 44 of the Constitution. It states that the political party “List
for Clean Drinking Water” submitted a list of candidates for the election of
deputies to the National Assembly in the 1st constituency on 20 August 2008, that
the list was supported by fifty confirmed forms expressing the support of the
voters from the constituency, and the person submitting the list allegedly received
confirmation thereof. On 28 August 2008, i.e. after the deadline to submit
candidacies had expired, the president of the party was informed by telephone
that three of the forms for expressing voters’ support in this constituency “were
not ok”. It was alleged that the voters in question did not have a permanent
residence in the constituency. The person submitting the candidacy relied on the
accuracy of the support of the voters expressed before the competent authority –
i.e. the administrative unit. It believes that it was the duty of the administrative unit
to verify whether the signatory supporting the List has a permanent residence in
the constituency, as it may access the voters’ permanent residence records.
Consequently, the complainant's reliance on the accuracy of the data provided in
the form for expressing support, which was confirmed by the administrative unit,
was allegedly reasonable. The complainant therefore argues that the finding of
the Supreme Court that the fact that three signatories of the form for expressing
support do not have a permanent residence in the constituency could not be
disputed is unfounded.
3. The complainant argues that, having regard to the third paragraph of Article 56 of
the NAEA, it was requested to remedy the formal deficiencies of the list of
candidates in an unlawful manner. It claims that that provision of the NAEA
requires a written request in order to remedy the deficiencies of a list of
candidates; however, the complainant was requested to supplement the list of
candidates verbally by telephone, it was given a deadline that was too short, and
was not warned of the consequences if it failed to supplement the list of
candidates within the specified deadline. The complainant did not invoke this
allegation before the Supreme Court, but it alleges that the Supreme Court should
have addressed this issue ex officio.
4. By Order No. Up-2385/08, dated 8 September 2008, the Constitutional Court
accepted the constitutional complaint for consideration.
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B
5. The Supreme Court deemed that the rejection of the list of candidates was
consistent with the second paragraph of Article 56 of the NAEA and rejected the
complainant's argument that it relied in good faith that the work of the
administrative unit will be carried out properly as irrelevant given that the
complainant had been requested to remedy the formal deficiencies and that it had
allegedly asserted that it would submit other declarations of support within the
specified deadline. In the second paragraph of Article 43, the Constitution
guarantees the active and passive right to vote in the elections of deputies to the
National Assembly, and the NAEA specifies the manner of implementation of
those rights. The provisions governing the manner of expressing support to a list
of candidates enable the exercise of the voters’ active right to vote and, at the
same time, the passive right to vote of the candidates standing for election to the
legislative body. These rights are protected by Article 43 of the Constitution and
not by Article 44 of the Constitution to which the complainant also refers in order
to substantiate its constitutional complaint.
6. In accordance with the third paragraph of Article 43 of the NAEA, a political party
may submit a list of candidates in an individual constituency provided the list of
candidates is (inter alia) supported by the signatures of at least fifty voters who
have permanent residence in the constituency. In accordance with the first
paragraph of Article 47 of the NAEA, voters express their support by signing a
prescribed form; the voter shall sign the form in person before the competent
authority, which keeps a voting rights register, regardless of their place of
permanent residence. On the mentioned form, the competent authority confirms
that the person who signed the form before it is eligible to vote. Article 8 of the
Voting Rights Register Act (Official Gazette RS, No. 1/07 – official consolidated
text) determines that the right of a citizen of the Republic of Slovenia to vote is
entered ex officio in the Permanent Population Register, in which the citizen is
entered according to his permanent residence, unless provided otherwise by this
Act (however, such is not relevant for the case at issue). The prescribed form for
expressing support also requires that the data on the person’s residence are
provided, whereby, having regard to the third paragraph of Article 42 of the NAEA
and the manner in which the Voting Rights Register is kept, it has to be deemed
that the form requires that the data on the permanent residence are provided.
7. In Decision No. Up-304/98, dated 19 November 1998 (OdlUS VII, 240), the
Constitutional Court already emphasised that elections are a process that must
take place and be concluded within a specified continuous period and thus all the
activities that have to be carried out in this procedure are limited by precise and
very short statutory deadlines; all the authorities that have the power to decide in
this procedure must take the manner in which the right to vote is exercised into
account and, at the same time, such must also be taken into consideration by all
the participants in this procedure. This usually entails that the person submitting
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the list of candidates is obliged to submit a complete list of candidates in due
time; this obligation, however, does not imply that the person submitting the list is
required to verify the accuracy of the data contained in the confirmations issued
as authentic instruments by the competent national authorities. Therefore, the
voters who expressed their support, as well as the person submitting the list of
candidates, could reasonably expect that the competent administrative unit had
verified the data on a voter’s identity on the basis of which it was obliged to
establish whether the person signing the prescribed form is eligible to vote. In
view of the above, the administrative unit was obliged to verify the data regarding
the permanent residence of such a person. The active right to vote, including the
right to support candidates, which constitutes an element of this right, is exercised
in the constituency in which the voter has permanent residence. In addition, the
competent electoral commission that is bound by short deadlines when exercising
its competences must be able, as a general rule, to trust that another national
authority has fulfilled its obligation lawfully, as it is impossible to imagine that,
within the short deadlines that apply during the electoral procedure, and
especially at the stage of the nomination procedure, it would be required to verify
the entire work that the other national authorities had to perform in accordance
with their competences.
8. The complainant enclosed with the list of candidates fifty forms signed by voters
before the competent authority. All of the forms, i.e. including the three forms that
are allegedly disputable and that were confirmed by the Jesenice Administrative
Unit, included addresses that lay in the territory of the 1st constituency as
residences. In view of the above, the complainant reasonably relied on the fact
that the competent administrative unit had lawfully performed the work that is
entrusted to it within the electoral procedure.
9. If the list of candidates fails to meet the condition determined in the third
paragraph of Article 43 of the NAEA – i.e. fifty signatures of support by voters
who have permanent residence in the constituency – such cannot be deemed a
formal deficiency that could be remedied within the deadline and according to the
procedure determined by the second paragraph of Article 56 of the NAEA.
However, it would not be inconsistent with the right to vote if the electoral
commission nevertheless requested that the person submitting the list of
candidates supplement the list of candidates within the meaning of the second
paragraph of Article 56 of the NAEA, as, if it transpired that the submitting person
was already in possession of obtained additional signatures of support or that it
had inadvertently failed to submit them, etc., then such would actually have the
nature of a formal deficiency, which does not require new election-related
activities to be performed in the nomination procedure and that could therefore be
remedied.
10. The assessment of whether the complainant could reasonably rely on the fact
that the competent administrative unit performed its task lawfully is therefore
essential for the decision on confirming or rejecting the complainant’s list of
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candidates. Therefore, the Supreme Court’s position, according to which the
complainant’s argument that it was acting in good faith and therefore relied on the
proper work of the national authority are irrelevant, violates the complainant’s
right to vote determined in Article 43 of the Constitution. Consequently, the
Constitutional Court abrogated the judgment of the Supreme Court.
11. As the electoral commission is the electoral authority that is required to verify
whether the list of candidates fulfils all the conditions required by law, and is
therefore also responsible for the lawfulness of the work performed, the electoral
commission, although it is not under any obligation to do so, may not be denied
the competence to verify whether all the conditions provided by law are fulfilled,
provided it acts in the same way in all cases characterised by identical
circumstances, as it is also bound by the second paragraph of Article 14 of the
Constitution. The Constitutional Court was not required to consider such as the
complainant did not invoke the allegation of unequal treatment. If upon such
verification the EC found that the competent administrative unit had not
performed its work lawfully, this does not entail that such failure can be attributed
to the person submitting the list of candidates who performed his work in
accordance with the law and who in view of the above could reasonably rely on
the confirmation of the national authority. In such circumstances, the EC could not
simply reject the candidacy upon finding that the person submitting the list was
unable to remedy the established deficiency in the manner provided in the second
paragraph of Article 56 of the NAEA as it transpired that the person submitting the
list in fact did not possess any other forms expressing support. The Constitutional
Court also considered the fact that the list of candidates was submitted on 20
August 2008 and that the person submitting it was requested to supplement the
list as late as 28 August 2008, despite the provisions of the second paragraph of
Article 54 of the NAEA.[1] This decision of the EC deprived the complainant and
the candidates on the list of candidates of their right to vote. Given the
circumstances of the case at issue, the EC’s decision thus violated the
complainant's right determined in the second paragraph of Article 43 of the
Constitution and, despite the fact that the complainant had invoked it explicitly in
its appeal, the Supreme Court failed to remedy this violation due to its position
that is inconsistent with the Constitution. In such circumstances, the EC should
have decided in favour of the right to vote and confirmed the list of candidates.
Therefore, the Constitutional Court annulled the challenged decision of the EC.
12. Due to the short deadlines and, in particular, in order to enable the effective
exercise of the right to vote of all persons who are eligible to vote, on the basis of
the first paragraph of Article 60 of the Constitutional Court Act (Official Gazette
RS, No. 64/07 – official consolidated text – hereinafter referred to as the CCA),
the Constitutional Court also decided on the lawfulness of the submitted list of
candidates. The complainant submitted the list of candidates within the
prescribed deadline and demonstrated that the list fulfils the conditions
determined by law. With regard to the above-mentioned reasons, it had to be
deemed that the complainant could reasonably rely on the fact that fifty voters
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with permanent residence in the 1st constituency supported the list of candidates
through their signatures, and the unlawful work of the competent administrative
unit cannot outweigh the importance that the confirmation of the candidacy has
for the complainant. Therefore, the Constitutional Court confirmed the list of
candidates and, on the basis of the second paragraph of Article 60 of the CCA
and given the current stage of the electoral procedure, ordered the National
Electoral Commission to enforce this Decision. The EC already carried out a draw
in order to determine the order of the confirmed lists of candidates [on the ballot
papers] on 3 September 2008; therefore, to ensure the effective implementation
of the election-related activities that still have to be performed before election day,
the Constitutional Court decided that the list of candidates, confirmed by this
Decision, was to be placed last on the list of confirmed lists of candidates in the
1st constituency.
C
13. The Constitutional Court adopted this Decision in accordance with the first
paragraph of Article 59 and Article 60 of the CCA and the first indent of the
second paragraph of Article 46 of the Rules of Procedure of the Constitutional
Court (Official Gazette RS, No. 86/07), composed of: Jože Tratnik, President, and
Judges Mag. Marta Klampfer, Mag. Miroslav Mozetič, Dr Ernest Petrič, Jasna
Pogačar, and Jan Zobec. The decision was reached unanimously.
Jože Tratnik
President
Note:
[1] The second paragraph of Article 54 of the NAEA reads as follows: “Upon receipt
of a list of candidates, the constituency electoral commission shall immediately
ascertain whether the list of candidates was submitted in due time and whether it was
nominated in accordance with this Act.”