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Monday, November 28, 2022

The courts are clearly not interested in Janković’s trampling of the constitution and laws in the field of electoral legislation

By: Domen Mezeg / Nova24tv.si

“The constitutional complainant challenged the election of the Mayor of the City of Ljubljana (MOL) Zoran Janković and the city councillors from the List of Zoran Janković before the city council and before the Administrative Court with five objections about irregularities. The most important of the irregularities is the use or abuse of public funds for the purposes of the election campaign,” an active citizen Vili Kovačič and former candidate for Ljubljana mayor Tomaž Ogrin explained the filing of a constitutional appeal to the Constitutional Court.

Active citizen Vili Kovačič decided to file a constitutional appeal against the judgment of the Administrative Court of January 25th, 2019, after he had previously filed an appeal with the Administrative Court of the Republic of Slovenia on December 24th, 2018, in Ljubljana. He submitted both documents together with Tomaž Ogrin, candidate of the Green Party for mayor of the City of Ljubljana. As already stated in the appeal to the administrative court, “the key reason for the appeal is the illegal and unconstitutional influence on the electoral outcome during the voting in the local elections on November 18th, 2018, in Ljubljana.” In the constitutional complaint, it is stated in the introduction: “The administrative court violated the constitutional rights by not holding an oral public hearing and did not allow the constitutional complainant to present his views, hear opposing parties and witnesses, and present evidence, even though the constitutional complainant requested all of this and provided sufficient grounds and attached documentary evidence of violations.”

As Kovačič and Ogrin explain below, the irregularity was caused by the impermissible and one-sided use of public money for the purpose of issuing and sending printed newsletters. And it was the latter that represented unauthorised public propaganda, which is a serious violation. The two initiators point out that in developed Western European democracies such behaviour is severely sanctioned. Candidates are possibly eliminated, and the elections annulled. “The OSCE, the Council of Europe, the European Union and international organisations consider this to be one of the worst abuses, which in many countries is also a criminal act,” explained the petitioners of the constitutional complaint. As complainants, they requested both a public oral hearing before the administrative court, as well as the questioning of themselves and their opponents and witnesses, and the presentation of other evidence. In addition, documentary evidence of irregularities were attached to confirm the allegations.

In accordance with the law, the administrative court should decide on the case within 30 days. Although the judgment of the aforementioned court is extremely long, it only defines a small part of the appellant’s statements. “The administrative court confirmed that the legislator clearly prescribed that the election campaign for the mayor and his list are not allowed to be financed from the municipal budget,” further stated Kovačič and Ogrin. The court also confirmed the misuse of public funds for the purpose of the pre-election campaign and the use of public money for propaganda. It also confirmed that the law had been violated, but, according to the court, this did not significantly affect the final outcome of the election. Namely, Zoran Janković’s list received 23 out of 45 seats in the MOL Council, and Janković received as much as 60.45% of the votes. And for other publications and the photographing of the mayor together with schoolchildren, the court recognised that it was “normal information” at the municipal expense and found no irregularities.

The Administrative Court decided not to conduct the hearing, because the case should not have a key influence on the outcome of the election. At the same time, it referred to the short 30-day deadline it had been given to rule on the disputed case. According to the court, the publicity of the trial was already satisfied with the “public announcement of the verdict on the notice board”. It also noted that it followed “general case law regarding the holding of public hearings in situations where a party does not convincingly demonstrate how the hearing of witnesses, or any other concrete evidence could affect the decision”. It also referred to its practice of not conducting hearings and to the old practice from 2004, according to which “the mere request of a party to conduct a public hearing is not sufficient for the obligation to conduct the main hearing”. The court is convinced that “the trial at the main hearing would unnecessarily prolong the court proceedings and the necessary costs”.

By not holding an oral public hearing, the constitutional rights of the applicant were violated. The administrative court is otherwise known to avoid public hearings, thereby actually violating rights. The obligation to hold public hearings in matters relating to elections is otherwise determined by the Council of Europe’s Code of Good Practices in Electoral Matters. However, the violation in the case of elections was substantial. If the mentioned List of the Mayor of Ljubljana had only a handful of votes less, it would have received only 22 seats out of 45 seats, and as a result it would not have a majority in the MOL council. “It won the majority by an extremely narrow majority of only a few votes. The violation, which was also found by the Administrative Court, was therefore very important. Moreover, hearings, my oral presentation and the presentation of the other proposed evidence would prove even more violations.” Regarding the 30-day period, the complainants clearly emphasise that it is long enough to convene and conduct the hearing. This kind of practice is also in force abroad. In some places, a day or two is enough to decide, even before the elections.

“I am showing my legal interest with a constitutional complaint, but also as a voter and because I intend to run for office in the future and fight for fair elections. As soon as he saw the name of the judge, the constitutional appellant pointed out that the judge’s brother and the MOL lawyer are party colleagues in the LDS and they were ministers of the same LDS political party, and this election dispute is a distinctly political dispute. It is a violation of the appearance of impartiality (Article 6 of the EKČP). I suggest to the Constitutional Court of the Republic of Slovenia that it annuls the judgment of the Administrative Court as an absolute priority and returns the case to the Administrative Court of the Republic of Slovenia for a new decision with an instruction to hold a public hearing and enable the constitutional appellant to present evidence.”

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