Initiative submitted to the Constitutional Court to assess the constitutionality of SEC’s recommendations

Centre for Civic Education (CCE) submitted to the Constitutional Court yesterday, according to an earlier announcement, An initiative to review the constitutionality of Technical Recommendations for the Epidemiological Protection of Voters During Elections, adopted by the State Election Commission (SEC) at the 130th session, held on 6 August 2020.

Immediately after the publication of this act, the CCE pointed out its numerous shortcomings by communicating it with the Montenegrin public and international partners who understood the gravity of the problem. It is particularly concerning the tendency of the establishment of practice in which institutions consciously bring unconstitutional solutions. The statement of the SEC spokesperson confirms that the SEC’s members knew that they were violating the Constitution by adopting this act and that they not dispute its unconstitutionality.

The Constitutional Court must rule on this issue in an urgent procedure and we believe that it will not be difficult as it is indisputable that the SEC’s act is contrary to the Constitution of Montenegro. Also, this act is in contradiction with the Law on the Election of Councilors and MPs and by-laws of the SEC, and its provisions seriously violate positive norms that have imperative character.

We remind that although the title indicates that these are technical recommendations, the act issued by the SEC also envisages certain rights and obligations for voters, observers, election administration bodies, as well as other persons. It determines who can and who cannot use the right to vote and is therefore subject to constitutional review. This is confirmed by the formulations used in the document (‘mandatory’, ‘cannot’, ‘necessary’, etc.).

In the Initiative sent to the Constitutional Court, the CCE pointed out that parts of the document regulating voting for persons placed in quarantine outside their place of residence, but also the provisions prescribing the procedure for voting by letter, are contrary to Article 45 of the Constitution, Article 3 of the Additional Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 85 of the Law on the Election of Councilors and MPs.

The Constitution of Montenegro, in Article 45, prescribes that the right to vote is universal and equal, while the SEC in its act unjustifiably denies the right to vote to persons who at the election day by decision of the competent authority, are in quarantine outside their place of residence.

Article 3 of Additional Protocol No. 1 to the Convention points out that “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

The European Court of Human Rights sets the standards since half a century and the case X vs. Germany (Application No. 2728/66) concerning case-law on active suffrage, which states that ‘the right to vote is not a privilege’. Since the verdict Hirst vs. UK (Application No. 74025/01), it also set standards for assessing whether or not a restriction on the right to free elections is in line with the Convention. In this specific case, out of the three envisaged standards, only one condition is met, which refers to the legitimacy of the purpose of the restriction. However, the introduced restriction is disproportionate to the legitimate aim and narrows the right to vote to such an extent that it damages its essence and deprives it of efficiency.

Also, formalities have been imposed for persons who are in quarantine within their place of residence, as well as for citizens in self-isolation, which significantly hinder or prevent their exercise of the right to vote.

The CCE also pointed out comparative constitutional practice, or more precisely the practice of the Constitutional Court of the Republic of Croatia in the case of business designation labeled as U-VII-2980/2020 from 3 July 2020. The Croatian Constitutional Court has taken the position that it is constitutionally justified to deny access to a polling station only to persons suffering from COVID-19 and that only ill persons should vote by letter.

The SEC failed to inform the public whether consideration had been given to testing all persons in quarantine and self-isolation who had not been diagnosed with the virus before election day and to allow them to vote at the polling station if they are negative. The public does not even know whether the SEC considered the introduction of special polling stations in quarantines, such as the one in the Directorate for the Execution of Criminal Sanctions.

The CCE hopes that the SEC will, upon united public reactions from non-governmental organizations and political parties, but also clear diplomatic messages, finally take seriously the work on this important document and that it will be in accordance with the Constitution and the law and enable safe conduct of the elections.

Damir Suljević, programme associate