In anticipation of the announced negotiations to resolve the legal and political crisis related to the elections in Savnik, the Center for Democratic Transition (CDT) is presenting a draft objection that the political parties participating in said elections should submit to the State Election Commission (SEC). The SEC is expected to reject such Objection due to lack of jurisdiction, meaning that the Objection would subsequently reach the Constitutional Court, as stipulated by law.
Without prejudging the outcome of negotiations, we believe it is crucial to send a message that an electoral process like the one in Savnik must not serve as the basis for any negotiating positions, as it must be annulled. Therefore, today, we want to provide a detailed overview of the arguments that unequivocally demonstrate that the elections in this municipality are neither legal nor legitimate.
While we believe that anyone with an elementary knowledge of electoral processes and voting rights cannot consider these elections lawful, experience teaches us that partisan agreements have often taken precedence over law, international standards, and public interest. Therefore, we believe that the wider public should have an overview of all the facts that render this electoral process null and void.
STATE ELECTION COMMISSION OF MONTENEGRO
Pursuant to Article 107 Paragraph 1 and Article 108 paragraph 2 of the Law on Election of Councilors and Members of Parliament, ________ (filing party)_________ hereby submits the following
O B J E C T I O N
against the irregularities in the work of the Municipal Election Commission of Savnik, due to:
- – violation of the voting right from Article 45 of the Constitution of Montenegro and Article 10 of the Law on Election of Councilors and Members of Parliament;
- – failure to comply with Article 17 paragraph 1 of the Law on Election of Councilors and Members of Parliament (obligation of election bodies to act according to the law);
- – failure to comply with Article 27 paragraph 1 Item 1 of the Law on Election of Councilors and Members of Parliament (Municipal Election Commission ensures lawful conduct of elections);
- – failure to comply with Article 102 of the Law on Election of Councilors and Members of Parliament (conducting repeat elections) in relation to Article 98 of the Law on Election of Councilors and Members of Parliament (deadlines for ascertaining final results);
- – failure to comply with Article 103 paragraph 1 of the Law on Election of Councilors and Members of Parliament (conducting repeat elections “no later than seven days from the day the election is annulled”);
- – failure to comply with the State Election Commission’s order to render a decision on repeating the elections at certain polling stations.
Therefore, due to the violation of electoral rights, numerous omissions and irregularities that have a significant impact on the legality of the electoral process and the election results, we propose that the entire election process for the election of councilors in the Assembly of the Municipality of Savnik scheduled for October 23, 2022, be annulled.
Statement of reasons
Pursuant to the Decision to call for elections for councilors, among others, in the Assembly of the Municipality Savnik published in the “Official Gazette 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 Savnik were scheduled for October 23, 2022.
On the day of the elections, voting was interrupted due to irregularities at polling station No. 1, the Municipal Assembly Hall, and polling station No. 14, Krusevice cafe bar.
The repeat elections at the mentioned two polling stations have not been conducted as of the date of filing this Objection, that is, more than a year and a half since the date scheduled for the elections on October 23, 2022.
According to Article 17 paragraph 1 of the Law on the Election of Councilors and Members of Parliament, the Municipal Election Commission of Savnik was obliged to act according to the law. The obligation was evidently not fulfilled, considering that the electoral process has not been concluded more than a year and a half since the date scheduled for the 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 ensure the lawful conduct of elections. Said obligation and authority were evidently and undisputedly not fulfilled and performed.
According to Article 102 of the Law on the Election of Councilors and Members of Parliament, repeat elections had to be conducted if the competent election commission annulled the elections at individual polling stations. Repeat elections had to be conducted in the manner and procedure regulated by the Law on the Election of Councilors and Members of Parliament, which also was not done.
According to Article 103 paragraph 1 of the Law on the Election of Councilors and Members of Parliament, repeat elections had to be conducted within seven days from the day of annulment of the elections. However, they have not been conducted to date. By specifying that the repeat election must take place “within” a clear deadline, the legislator implies that the failure to meet such a deadline constitutes illegality and irregularity. The ratio legis of this legal provision is clear and in line with the spirit and purpose of the entire text of the Law on the Election of Councilors and Members of Parliament, which emphasizes that the electoral process is strictly formal and actions must be carried out within clearly defined deadlines, with the aim the uniform application of the law and protection of voting rights.
Considering that the legal obligation to conduct elections within seven days from the day of annulment of the elections has not been fulfilled and that they have not been conducted even more than a year and a half after that, it is clear that the entire electoral process is illegal and cannot be convalidated by completing the electoral process at the remaining two polling stations in a few days, months, or years from today.
Furthermore, Article 36 paragraph 2 of the Law on Local Self-Government, provides that elections for the local assembly are held no later than 15 days before the expiration of the term of the assembly. It can be assumed that this deadline is set in case it is necessary to repeat elections at a polling station, so that such repetition can be conducted before the expiration of the municipal assembly’s term. However, the mandate of the Assembly of the Municipality of Savnik expired in June 2022. Moreover, Article 14 paragraph 1 of the Law on the Election of Councilors and Members of Parliament stipulates that elections for councilors and members of parliament are held no later than 15 days before the expiration of the term of office of councilors or members of parliament.
Article 45 of the Constitution of Montenegro guarantees the voting right, while Article 10 of the Law on the Election of Councilors and Members of Parliament stipulates that the voting right, among other things, includes the right to vote for and stand as a candidate in an election.
Clearly, voters who exercised their right to vote on October 23, 2022, had their voting rights violated because the electoral process has not been concluded to this day. Up to the present day, their electoral will has not been effectuated through a specific electoral result.
Such circumstances make it possible for various situations to occur that indicate that it would be absurd to end this electoral process and to assume that ending it would convalidate it.
Firstly, it is entirely possible that there are voters who voted on October 23, 2022, and have since passed away more than a year ago, whose expressed will contribute to the commencement of someone’s mandate sometime in the future if and when the electoral process concludes.
Secondly, if we are not pretending to be naive regarding the phenomenon of electoral tourism, which even representatives of electoral lists participating in the elections do not deny in their public statements, it is realistic to assume that a greater number of voters who voted on October 23, 2022, have since deregistered their residence in Šavnik. They have now been living in another local self-government unit for an extended period of time (in some instances, over a year), and their vote should determine the result of the elections in Savnik once those elections are over.
Thirdly, again taking into account electoral tourism, it should be noted that elections for councilors in the Municipality of Andrijevica and Budva are currently scheduled. Therefore, it is possible that voters who voted on October 23, 2022, are now voting in the elections in Andrijevica or Budva and their votes are counted in the election result, and then at some point their votes will also be counted in the election result in Savnik, if those elections ever conclude.
Fourthly, in the meantime, the composition of the Municipal Election Commission of Šavnik, which conducted the elections, has changed, and the immediacy in the implementation of electoral actions has been lost. On the other hand, this did not allow the election to be completed, but the blocking of the election process continued.
Fifthly, the social and political situation in Montenegro has completely changed. The actors on the political scene and their power relations have changed. It is absolutely unrealistic to assume that the election result in Savnik, even if the elections were to be completed in a few days, would reflect the real political will of the voters in that city on that day. On the contrary, the real political will is certainly significantly different from the one expressed in October 2022.
Sixthly, hypothetically, and unrealistically, if the elections at two polling stations were to conclude in a few days – in 2028, the elected councilors would end the mandate for which they received votes in 2022.
If it were to be accepted that such a factual situation does not constitute a violation of voting rights or an irregularity of a scale that affects the election result, then the elections could last for another year and a half or even 15 years, because the Law cannot establish a distinctive element by which elections lasting a year and a half are lawful, and those lasting 15 years are unlawful. 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 within seven days from the day of annulment of the election at the individual polling station, making anything but that illegal.
We emphasize that this would not be in line with the universally accepted democratic standard of periodic elections, which entails the obligation to hold elections at reasonable intervals. In the general comment on Article 25 of the International Covenant on Civil and Political Rights (the right of every citizen to take part in the conduct of 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.
In the General Comment on Article 25 of the International Covenant on Civil and Political Rights (taking part in the conduct of public affairs and the right to vote), the obligation to hold periodic elections is interpreted to mean that elections must be held at intervals which are not unduly long and ensure that the authority of government continues to be based on the free expression of the will of elector.
Finally, it is widely known that the previous electoral process in Savnik has resulted in a large number of criminal proceedings. The annual report of the Basic State Prosecutor’s Office in Pljevlja, which has jurisdiction over the municipality of Savnik, indicates that the Prosecutor’s Office has submitted indictments for criminal offenses related to the violation of voting rights (Article 185 of the Criminal Code of Montenegro), obstruction of voting (Article 189 of the Criminal Code of Montenegro), and destruction of voting documents (Article 193 of the Criminal Code of Montenegro). Numerous criminal proceedings are related to offenses against voting rights, and in some cases, first-instance judgments have been rendered.
Whenever an electoral process is accompanied by legal violations that seek criminal legal intervention on a larger scale, it is difficult to argue that such an electoral process can be deemed 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, 2022.
Any other kind of reasoning would represent a confirmation that neither the voting rights of citizens nor their will, nor the legality and correctness of the electoral process itself, matter.
Therefore, it should be borne in mind that the fundamental provisions of the Constitution, in Article 2 paragraph 3, stipulate that the power not stemming from the freely expressed will of the citizens in a democratic election in accordance with the law, can neither be established nor recognized.