The Center for Democratic Transition (CDT), in response to the announced negotiations on resolving the legal-political crisis in connection with the elections in Šavnik, has published a draft of the text of objections that, as they state, the parties participating in those elections should send to the State Election Commission (SEC). , she rejected the objection due to lack of jurisdiction, so, according to the law, he would be before the Constitutional Court.
"Without prejudging the outcome of those negotiations, we believe it is very important to send a message that an election process like this one in Šavnik must not be the basis for any negotiating positions, but must be annulled. That is why today we want to give a detailed overview of the arguments that unequivocally indicate that the elections they are neither legal nor legitimate in this municipality," said CDT.
"Although we believe that anyone who has basic knowledge of electoral processes and voting rights cannot consider these elections to be legal, experience teaches us that party agreements often came before the law, international standards and public interest, so we believe that the general public should have an overview of all facts that make this election process null and void," said the NGO.
We transfer the document in its entirety.
"__________ (objectors)_________ on the basis of Article 107 paragraph 1 and 108 paragraph 2 of the Law on the Election of Councilors and Members of Parliament submit OBJECTION to the failures of the Šavnik Municipal Election Commission, due to:
- violations of voting rights from Article 45 of the Constitution of Montenegro and Article 10 of the Law on the Election of Councilors and Members of Parliament;
- failure to act in accordance with Article 17 paragraph 1 of the Law on the Election of Councilors and Members of Parliament (obligation of the election enforcement body to work on the basis of the law);
- failure to act in accordance with Article 27 paragraph 1 point 1 of the Law on the Election of Councilors and Members of Parliament (Municipal Election Commission takes care of the legal conduct of elections);
- failure to act in accordance with Article 102 of the Law on the Election of Councilors and Deputies (conducting re-elections) in connection with Article 98 of the Law on the Election of Councilors and Deputies (deadlines for ascertaining the final results);
- failure to act in accordance with Article 103 paragraph 1 of the Law on the Election of Councilors and Members of Parliament (conducting re-elections "no later than within seven days from the date of annulment of the election");
- failure to act on the orders of the State Election Commission to make a decision on repeating the election at certain polling stations,
therefore, they propose that due to the violation of voting rights, numerous omissions and irregularities that have a significant impact on the legality of the election process and the election result, the entire election procedure for the election of councilors in the Assembly of the Municipality of Šavnik scheduled for 23.10.2022/XNUMX/XNUMX should be annulled. years.
Explanation
The decision to announce elections for councilors, among others, in the Assembly of the Municipality of Šavnik published in the "Official List of Montenegro" no. 86/2022 and 94/2022 and "Official Gazette of Montenegro - Municipal Regulations" no. 38/2022 and 42/2022, elections for the Assembly of the Municipality of Šavnik have been announced for October 23.10.2022, XNUMX. years.
On the day of the election at polling station no. 1 Sala SO Šavnik and polling station no. 14 Kafana Kruševica voting was interrupted due to irregularities.
The conduct of re-elections at the mentioned two polling stations was not carried out until the day of submission of this complaint, that is, not more than a year and a half from the day scheduled for holding the elections on 23.10.2022. years.
According to Article 17 paragraph 1 of the Law on the Election of Councilors and Members of Parliament, the Municipal Election Commission of Šavnik had an obligation to work on the basis of the law, which obligation it evidently did not fulfill, and given the fact that the election process in question has not yet been completed more than a year and a half from the date of the scheduled for holding elections.
According to Article 27 paragraph 1 item 1 of the Law on the Election of Councilors and Members of Parliament, the Municipal Election Commission had the legal authority and obligation to take care of the legal conduct of the election, which obligation and authority, also evidently and indisputably, it did not fulfill and exercise.
According to Article 102 of the Law on the Election of Councilors and Members of Parliament, re-elections had to be conducted if the competent election commission annulled the elections at an individual polling station. Re-elections had to be conducted in the manner and according to the procedure regulated by the Law on the Election of Councilors and Members of Parliament, which was also not done.
According to Article 103 paragraph 1 of the Law on the Election of Councilors and Members of Parliament, re-elections had to be held no later than seven days from the date of annulment of the election, and they have not been held until today. By specifying "at the latest", the legislator set a decisive deadline, which implies that missing such a deadline in itself is illegal and irregular. The ratio legis of this legal provision is quite clear and is in accordance with the spirit and meaning of the entire text of the Law on the Election of Councilors and Members of Parliament, which indicates that the election procedure is strictly formal and that actions must be carried out within clearly defined deadlines, all with the aim of uniform application of the law and protection of voting rights.
The fact that the legal obligation to conduct the elections within seven days from the date of annulment of the elections, and they were not conducted more than a year and a half after that, clearly indicates that the entire election process is illegal and cannot be validated thereby that the election process in the remaining two polling stations would end in a few days, a few months or a few years from today.
Furthermore, Article 36 paragraph 2 of the Law on Local Self-Government stipulates that the elections for the assembly shall be held no later than 15 days before the end of the mandate of the assembly. It can be assumed that this deadline was set in the event that it is necessary to repeat the elections at a polling station, so that this repetition could also be carried out before the end of the mandate of the municipal assembly. However, the mandate of the Assembly of the Municipality of Šavnik expired in June 2022. Also, Article 14 paragraph 1 of the Law on the Election of Councilors and Members of Parliament prescribes that elections for councilors and members of parliament are held no later than 15 days before the end of the election period of councilors and members of parliament whose mandate is running out.
Article 45 of the Constitution of Montenegro guarantees the right to vote, while Article 10 of the Law on the Election of Councilors and Members of Parliament stipulates that the right to vote, among other things, includes the right of voters to vote and to be elected.
It is clear that the voters who exercised their right to vote on 23.10.2022. the right to vote was violated because the election procedure has not been completed to date. Their electoral will, until today, has not been effected through a specific election result.
These circumstances make possible several different situations that indicate that it would be absurd to end this electoral process and to assume that ending it would validate it.
First, it is quite possible that there are voters who on 23.10.2022. voted and passed away more than a year ago, and in accordance with whose expressed will to someone, only sometime in the future when and if the election process is over should the mandate begin.
Secondly, if we are not naive in relation to the phenomenon of electoral tourism, which is not disputed by the representatives of electoral lists participating in the elections, even in their public appearances, it is realistic that a larger number of voters who voted on 23.10.2022. In the meantime, he registered his residence in Šavnik. They have now been living in another local self-government unit for a long period of time (for some, over a year), and their vote should determine the result of the elections in Šavnik once those elections are over.
Third, again taking election tourism into account, it should be noted that at this moment, elections for councilors in the assembly of the municipalities of Andrijevica and Budva have been announced. Therefore, it may happen that voters who voted on 23.10.2022. are now voting in the elections in Andrijevica or Budva, their vote will be counted in the election result, and then in some unit of time their vote will also be counted in the election result of the election in Šavnik, if they ever end.
Fourth, in the meantime, the composition of the Šavnik Municipal Electoral Commission, which conducted the elections, was changed, and immediacy in the implementation of election actions was lost. On the other hand, this did not allow the election to be completed, but the blocking of the election process continued.
Fifth, the socio-political situation has completely changed in Montenegro. Actors on the political scene and their balance of power have changed. It is absolutely unrealistic that the election result in Šavnik would reflect the real political will of the voters in that city on that day even if the elections were over in a few days. On the contrary, the real political will is certainly significantly different from the one expressed in October 2022.
Sixth, if hypothetically, and which is not realistic, the elections at two polling stations were to be completed within a few days, then the elected councilors in 2028 would complete the mandate for which they received the vote in 2022.
If, by any chance, it is accepted that this factual situation does not represent a violation of voting rights, nor an irregularity of scale that affects the election result, then the elections could last for another year and a half or another 15 years, because the Law cannot establish any distinctive an element according to which elections lasting a year and a half would be legal, and those lasting 15 years illegal. This is due to the fact that this distinctive element is already provided for in the Law and it implies the repetition of the election no later than seven days from the day of annulment of the election at the individual polling station, making the procedure illegal.
We note that this would not be consistent with the universally accepted democratic standard on periodic elections, which entails the obligation that elections must be held at reasonable intervals. In the general commentary to Article 25 of the International Covenant on Civil and Political Rights (participation in public affairs and the right to vote), the obligation to hold periodic elections is interpreted in such a way that elections must be held at intervals that are not unreasonably long, and which ensure that the authority of the government continues to rest on the freely expressed will of the voters.
Finally, it is common knowledge that the election process in Šavnik so far has resulted in the initiation of a large number of criminal proceedings. From the annual report on the work of the Basic State Prosecutor's Office in Pljevlja, which is the local authority for the municipality of Šavnik, it follows that the prosecution submitted indictments to the court for criminal offenses of violation of the right to vote (Article 185 of the Criminal Code of Montenegro), preventing voting (Article 189 of the Criminal Code of Montenegro). and destruction of voting documents (Article 193 CC of Montenegro). It is about a large number of criminal proceedings related to criminal offenses against electoral rights, and in some of them a first-instance verdict was also brought.
When an election process is accompanied by violations of the law to such an extent that there is criminal legal intervention, especially on a larger scale, it is difficult to find an argument to characterize such an election process as legal, fair and honest.
Bearing in mind all of the above, the only legally and democratically correct way out of this situation is to cancel the entire election procedure for the election of councilors in the Assembly of the Municipality of Šavnik scheduled for October 23.10.2022, XNUMX. years.
Any other judgment would represent a confirmation that neither the voting rights of citizens, nor their will, nor the legality and regularity of the election process itself are important.
Therefore, it should be borne in mind that the basic provisions of the Constitution in Article 2 paragraph 3 stipulate that no authority can be established or recognized that does not arise from the freely expressed will of the citizens, in democratic elections, in accordance with the law."
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