The Constitutional Court should act consistently and with its decisions produce a unique practice that prevents procedural irregularities from representing a possible obstruction of the electoral process, and not for its decisions to be the basis for the justification of such action.
This was assessed by the President of the Constitutional Court in a separate opinion on the decision to reject the appeal of the holder of the Naprijed Movement's election list, Vuk Kadić, with which he requested a repeat of the elections in Doljani.
The Constitutional Court announced today the decision to reject one of Kadić's appeals, which was made on October 24, as well as the dissenting opinion of the president Snezana Armenko.
The Naprijed movement submitted to the Constitutional Court appeals against the decisions of the State Election Commission (SEC), which rejected 14 objections related to, as they claim, irregularities in the elections in Podgorica held on September 29.
Yesterday, the Constitutional Court rejected the remaining 13 appeals of the Forward Movement, after which the results of the elections in the capital were announced.
In a separate opinion, Armenko stated that any deviation from the practice of the Constitutional Court should be accompanied by a clear and precise explanation of why that case, in the specific circumstances of the case, cannot be equated with the previous practice
She says that she agrees with the decision that Kadić's appeal should be rejected because the lack of a printed extract from the voter's list does not represent an irregularity that would significantly affect the election result at this polling station and for which the entire election procedure or its parts should be annulled.
"However, I do not agree with the explanation that this case is factually and legally different from the situation in which the Constitutional Court, previously, in the case of business code U-VII No. 1/21 of March 27, 2021, decided that due to the lack of a printed extract from the voter list, accept the election appeal, cancel the election procedure and order a repeat of the election, on which the applicant justifies their election appeals,'' Armenko said.
On March 27, 2021, the Constitutional Court accepted the appeal of the Black and White list, annulled the election procedure at the "Javljen" basic school polling station in the municipality of Nikšić and ordered a repeat of the election.
Armenko said that in the decision rejecting Kadić's appeal, the difference compared to case U-VII no. 1/21 in which the Constitutional Court made a different decision, and the legal situation is identical.
"In both cases, the printed excerpt from the voter list disappeared, and the minutes of the work of the voter committee were signed without objections, while on the other hand, we have two different decisions of the Constitutional Court. In the case referred to by the applicant of the election complaint, as a well-established constitutional judicial practice, the Constitutional Court established that the polling committee, when determining the results of the voting at the polling station, and later in the procedure following an objection by the Municipal Election Commission (MEC) and the State Election Commission ( SEC), due to the lack of excerpts from the voter list, could not reliably determine the total number of voters who voted at that polling station, which, in the opinion of the Constitutional Court at the time, was sufficient to cancel the decision, annul the election procedure and order its repetition at that polling station. ', reminded Armenko.
However, the Constitutional Court made such a decision then, as he says, regardless of the fact that not a single remark was entered in the record of the election committee's work, nor did it deal with the legal force of the record, as in the specific case where its content and the fact that it was signed without remarks was one of the decisive circumstances for which the complaint was rejected.
He reminds that in this case, all the judges of the Constitutional Court were unanimous that, given the fact that the voter's list has disappeared, an extract from the electronic version of the voter's list for this polling station should be requested, so that the Constitutional Court can determine by direct inspection whether the content of the record of work of the electoral board corresponds to the data from the extract of the electronic version of the electoral roll, and that, following his authority, he would determine whether, apart from this irregularity (lack of a printed extract from the electoral roll), there are other irregularities and omissions that would have a significant impact on the election result.
Armenko states that the electronic version of the voter list that the Constitutional Court requested from the SEC as an integral part of the voting material, in the sense of Article 68a of the Law on the Election of Councilors and Representatives, represents the basic document for voter identification, since this article clearly stipulates that " at the polling stations they use electronic devices for voter identification, that the voter must be electronically identified in order to vote, and that the voter who refuses electronic identification will not be allowed by the electoral committee to vote".
Article 68b paragraph 2 of the same Law stipulates that "the president of the electoral board finds the voter in the electronic and printed extract from the voter list using electronic identification, the voter signs in the place provided for that on the extract from the voter list, after which the electoral board allows the voter to vote".
"I would like to remind you that in both cases the minutes of the work of the electoral committee were signed without objections. When evaluating the allegations from the election appeal in question and following the content of the contested decision of the State Election Commission, it was indisputably established that the SEC itself did not inspect the electronic version of the electoral roll and thus checked the allegations of the applicant of the election complaint. This was done by the Constitutional Court, at its own discretion, in order to verify the allegations from the election complaint," said Armenko.
As she added, by directly checking the records of the use of devices at the polling station (eIB devices), which were submitted by the Ministry of Internal Affairs, Ustavni found that all activities that took place during the use of eIB devices were visible in those records, such as: starting system, successful and unsuccessful voter identification, error when reading the document, records of each successfully identified voter for a specific polling station, as well as voter's personal data.
Armenko states that the Constitutional Court found on direct inspection that electronic identification was not carried out for five voters by letter, which represented an irregularity that, according to the Constitutional Court, did not have a significant impact on the election result at that polling station.
"I completely agree with this approach of the Constitutional Court, and I believe that this approach reflects the true role of the Constitutional Court, as the only court in the country, which decides on electoral disputes and which is given wider decision-making authority by the Law on the Constitutional Court, than the competent election commissions, which are bound by strict formal rules prescribed by the Law on the Election of Councilors and Members of Parliament."
Armenko explains that the reason for giving a separate concurring opinion is precisely the ease with which the Constitutional Court decides to deviate from its previous practice, and especially because of the inconsistency and unclear legal approach when it decides to use strict formalism for strict rules that apply to the electoral procedure, and when considers that he should undertake the determination of the facts himself and provide broader protection of the right to vote, as he did in this case, and decides that, despite the identified shortcomings in the work of the competent election commissions and the election board, which would be the reason for repeating the election, there is no basis for annulment because these irregularities do not have a significant impact on the election result.
"So, the distinction between these two factually identical cases is actually the explanation of the Constitutional Court, because it was the Constitutional Court that made them different with its explanations. De jurisprudentiae ferenda – the explanation is more important even than the end result itself," she stated.
He believes that the Constitutional Court should have simply established that he deviated from the legal position he expressed in the decision that the applicant of the election appeal justifiably and legitimately expected, because the Constitutional Court decided to take a broader view of the legal situation in question from a different legal aspect, itself obtain an extract from the Electronic Extract, which he did not do in the previous case, and determine whether this irregularity, in view of all the other indisputably established facts, has a significant impact on the election result that would justify the annulment of the election process at that polling station and order a repeat.
Armenko states that the mentioned constitutional law approach represents the already well-established practice of the Constitutional Court expressed in numerous cases, in no. 80/09 id April 6, 2009, U. no. 84/09 of April 9, 2009, U-VII no. 16/23 of June 29, 2023, U-VII no. 17 /23 of June 29, 2023, U-VII no. 18/23 of June 29, 2023, and numerous other cases.
According to her, in all those cases, the Constitutional Court concluded that, although it was established that the deficiency that would be the reason for repeating the election in accordance with the relevant provisions of the Law on the Election of Councilors and Members of Parliament from the aspect of competence of election commissions, that irregularity, from the aspect of competence of the Constitutional Court, it did not have a significant impact on the election result at specific polling stations, which is why the conditions for canceling part and all of the election procedure in accordance with the provisions of Article 102 of the Law on the Constitutional Court were not met.
"I believe that the Constitutional Court should act consistently, and that any deviation from practice should be accompanied by a clear and precise explanation of why that case in the specific circumstances of the case cannot be identified with the previous practice. All this in order to produce a unique practice with its decisions that prevents procedural irregularities represent a possible obstruction of the electoral process, and not for its decisions to be the basis for the justification of such action. Therefore, this position expressed unanimously in this case should be consistently respected in all other electoral cases, and the correctness of such a constitutional approach was also confirmed by of the European Court of Human Rights, which, on the contrary, determined violations in the case when the domestic authorities "stated excessively formalistic reasons in order to avoid examining the substance of election complaints" (Namat Aliyev v. Azerbaijan, 2010). According to the European Court, only serious irregularities in the counting process and determination of votes, which were not effectively considered before the competent election commissions, can be grounds for annulment of all or part of the election process (Davydov v. Russia and numerous others)," said Armenko.
This position, as she added, she already expressed in an earlier separate opinion with the decision of the Constitutional Court, U-VII no. 19/23.
"To conclude, guided by the standards imposed by the European Court of Human Rights in its decisions, which the Constitutional Court is obliged to apply, bearing in mind Article 9 of the Constitution and Article 1 of the Convention, first of all appreciating that it does not go beyond its jurisdiction prescribed by Article 102 of the Law on the Constitutional Court, limiting the Constitutional Court to ascertaining irregularities and improper decision-making without taking into account the essence of the electoral issue that the applicant points out, would lead to the fact that the Constitutional Court itself essentially helps and encourages the competent authorities for the implementation of elections, to carry out possible obstructions of the electoral procedure. "
Armenko stated that the Constitutional Court, as the defender and guardian of constitutionality and legality, should take care not to provide protection against possible procedural errors, without determining whether the observed irregularity has an impact on the election result in each specific case.
"I believe that by deciding in this way, only if it acts consistently, the Constitutional Court shows concern for the integrity and efficiency of the electoral process, while doing otherwise cannot be considered compatible with the spirit of the right to freedom of choice," concluded Armenko.
Bonus video:
