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    Judiciary, Electoral Commisions, Vlachs, Djoka = Déjà vu

    | 05/05/2012

     
    Its 1996, and local elections are taking place in Serbia. Milosevic and his gang are caught red-handed trying to steal the elections, which is why Serbian citizens protested in the streets for several months.

    Its 2012 – parliamentary, local and presidential elections are taking place. The bogus political party of the Vlach national minority is caught in electoral fraud. Serbian citizens are minding their business, if you don’t count the few skirmishes on television and other electronic media.

    You could say – horses for courses. Milosevic and his SPS played a much bigger role in the fate of Serbia than the candidate list of NOPO (Nijedan od ponuđenih odgovora – None of the Above) – the Vlach ethnic party, out of which Djoka popped out. However, many among us wrongly believed that 2000 saw the end of electoral fraud and violations. As the case of NOPO suggests, this is not true.

    The best way to begin is chronologically.

     
    PART ONE – Do you know what time it is, REC?

    The Republican Electoral Commission (REC) confirmed the candidate list of NOPO as the 18th and final one on the general electoral list. Against the confirmation of NOPO’s list one voter filed an appeal. According to Article 95, Section 1 of the Law on the Elections of Representatives: “Every voter, candidate and submitter of electoral list has the right to file an appeal with the Republican Electoral Commission because of infringements of electoral rights during the elections or because of irregularities in the procedure of candidacy or voting.” The appeal can be filed to REC within 24 hours of the execution of the act (in this case – the confirmation of NOPO’s candidate list). This appeal was based on several claims of the appellant: (1) that NOPO’s candidate list was not supported by the signatures of 10,000 voters, (2) that the signatures were obtained fraudulently, by calling the citizens to apply for polling board positions, for which they were offered a fee, and when they did apply, they were asked to support the NOPO list with their signature, and (3) that the submitters of the NOPO list waited for the right moment to submit their list, so they would be placed last on the general electoral list, wishing to mislead the voters with their name “None of the Above”. With its confirmation (No. 013-371/12 on April 24 2012), REC had rejected the appeal as unfounded.

    Rejection of the appeal, regarding the voter’s claim that the list was not supported by 10,000 valid signatures, was explained by REC in the following manner: The appellant is wrong to think that the submitter of the candidate list does not have 10,000 valid signatures supporting the list, because the Republican Electoral Commission determined that the list was supported by 10,407 legally valid, court-validated voter statements supporting the candidate list, of which 6,954 were submitted on April 20 2012, and 3,453 more on April 23 2012, following the conclusion of the Republican Electoral Commission. Now, exactly why did REC order the submitter of NOPO’s list to submit a further 3,453 validated signatures, when together with 6,954 other “legally valid” signatures this makes more than 10,000, this is not clear in this phase, but it is going to become apparent in the further development of REC’s thriller. Also, in this part of the proceedings, it is not clear why REC did not dismiss the list when it was not supported by 10,000 signatures, but with only 6,954, when the Law on the Elections of Representatives orders it to do so in Articles 43 and 44, graciously leaving NOPO the time to collect more signatures – but we shall see why from the development of this delicious little electoral procedure.

    The rejection of the complaint stating that the signatures were obtained by fraud, which consisted in calling the citizens to apply for polling board positions, is explained by REC in a legally curious manner: As for the means and methods which the party “None of the Above” had used in collecting the signatures, and which are listed by the appellant, they cannot be seen as coercive or in any other way influencing the will of the voters, because the voter is defined by Article 52 of the Constitution of the Republic of Serbia as ‘a citizen of age and capacity of the Republic of Serbia’, and campaign promises which are given by participants in the elections are common practice which does  not threaten in any way the principles of free, universal, equal and direct electoral right. Therefore, REC believes that this is not coercive, or in any other way influencing the will of the voters. Coercive it isn’t, but the behavior of NOPO which called the citizens to apply for paid polling board positions, and then asked them to support the list certainly constitutes misleading the voters. Furthermore, coercion, deceit, threat and every other manner of influencing a person’s will are relevant, contrary to REC’s explanation, exactly in the case of citizens of age and capacity, and not for those who are legally incompetent. Because legally incompetent persons are not given the opportunity by the legal system to express their legally relevant will – this is why they do not have the right to vote. Is REC (whose president is a lawyer) familiar with these simple facts of legal life, or does it not want to know about them? Also, political parties make promises in the campaign in order to convince the voters to vote for them, and not to trick the voters into signing a statement supporting their candidate list. Is REC, as a specialized electoral body, not able or not willing to recognize this distinction?

    As far as rejecting the appeal regarding the claim that the name of NOPO’s candidate list and its position on the general list might mislead the voters, REC gives the following explanation: … this title is in complete accordance with Article 42 Section 1 of the Law on the Elections of Representatives, which states that the name of the electoral list shall be determined according to the name of the political party which submits the list, and the party in question is officially registered under the name “None of the Above” with the Ministry of Human and Minority Rights, Public Administration and Local Self-Government. Let us leave aside the fact that this political party was registered under the name “Nijedan od ponuđenih odgovora – partija vlaške manjine“ (None of the Above – the party of the Vlach minority), and not simply as the neutral NOPO. This „explanation“ does not address the complaint which claims that the combination of the party’s name and the fact that it is the last one on the list could mislead voters.

     
    PART TWO – Judiciary awakes from „reform“

    The same voter made an appeal to the Administrative Court of Serbia against the ruling of the Republic Electoral Commission, in accordance with Article 97 Section 1 of the Law on the Elections of Representatives. This appeal must be lodged within 48 hours of receiving the ruling. In the appeal, the voter repeated and clarified the claims from the appeal which he filed with REC, and claimed that NOPO is not a party of the Vlach minority, but pretending to be one, and that it has “absolutely no connection” with Vlachs as a minority. In its ruling, the Administrative Court considered only the claim relating to the number of valid signatures supporting the candidate list, and not the other claims in the appeal.

    With regard to the regulations which must be followed in order for a candidate list to be supported with a sufficient number of signatures, the Administrative Court stated the following: According to Article 43 Section 1 of the Law on the Elections of Representatives, an electoral list is confirmed when it is supported by the signatures of not less than 10,000 voters, and according to Article 44 Section 2 of the same law, along with the electoral list, the Republican Electoral Commission shall be handed required documentation, comprising of: a certificate of suffrage for every candidate on the electoral list, stating the candidate’s name, surname, date of birth, profession and personal number; a written statement of agreement by the candidate by which he accepts the candidacy; a certificate of the residence of the candidates; a written statement on agreement by the carrier of the list; an authorization for persons submitting the electoral list; a certificate of citizenship; signatures of voters which are supporting a particular electoral list, verified by court, at the separate form. As for the moment when it is decided whether the submitted list is supported by no less than 10,000 signatures, regardless of whether the signatures are legally valid in that moment, the Administrative Court stated the following, accepting the claims from the appeal: The Court finds that there was no legal grounds for the Republican Electoral Commission to order the submittal of the missing signatures so as to meet the needed 10,000 signatures, because the condition for confirming the list is for it to be supported by 10,000 court-validated signatures, according to Article 44 of the stated law. Only when this condition is met, a further conclusion might instruct the amendment of certain flaws regarding the 10,000 signatures. From RC’s decision it is easy to determine that at the time the list was submitted, it was supported by 6,954 signatures, which means that REC should not have accepted the list or that it should have refused its confirmation, and not grant additional time for collecting the signatures. Had the Administrative Court just kept to this fact, REC would have had no other choice but to issue a new decision refusing to confirm the list, following the Administrative Court’s ruling, which would result in striking the NOPO list from the general list for parliamentary elections.

    However, Administrative Court had just woken up from the reformative hangover. Explaining the factual basis of its decision, the Court stated that REC’s inquiry had determined that among the 6,954 signatures there were invalid ones: 51 individuals were not registered to vote, 5 individuals were listed multiple times, 211 individuals had previously supported other candidate lists, “that 10 individuals whose statements were returned to the authorized person were registered on the list” (whatever that sentence might mean), and that at the time the list was submitted there were 6,344 valid signatures, therefore there were 3,656 signatures missing. Furthermore, the Administrative Court states that the applicant subsequently submitted a further 3,453 signatures, which totals to 9,798 valid signatures, which is not enough (even after the illegitimately granted time) for a candidate list to be validly supported. The Administrative Court pointed out that REC did not submit signed statements supporting the NOPO list, so the Court could check neither the number of signatures nor their validity. This is why the Administrative Court instructed REC: However, since the Republican Electoral Commission had mistakenly instructed the addition of the missing signatures, based on the differing number of signatures referred to by the Commission itself in its decision of April 21 2012, it is obliged to check again whether the applicant of the list “None of the Above” had amended the flaws which were pointed out to him by the decision of April 21 2012, and whether the conditions stated in Article 43 Section 1 and Article 44 section 2 of the Law on the Elections of Representatives are met for the candidate list to be confirmed. If REC determines by recount that the applicant’s list does not have 10,000 valid signatures, the Commission must accept the appeal and annul the confirmation of the list. With this conclusion the Administrative Court failed to: (1) order REC to determine the number of signatures (regardless of their validity) at the time of its submittal, and there were less than 7,000 and (2) to order REC to verify the number and validity of signatures in a verifiable and controllable way, because the Court itself explained that the signatures supporting the list were not submitted to it. Here I point out that the Administrative Court according to Article 97 Sections 4 and 7 of the Law on the Elections of Representatives cannot change REC’s decision, but can only overrule it and order REC to validly conduct the electoral process. And REC knows it.

    Therefore we have

     
    PART THREE: How does RIC respect the reformed judiciary?

     
    The problems with the candidate list None of the Above

    The Administrative Court in Belgrade announced tonight that it has overruled the decision of the Republican Electoral Commission on the confirmation of the parliamentary candidate list None of the Above.

    The Administrative Court was acting on the appeal to REC’s decision submitted by Aleksandar Lišančić from Belgrade.
    In today’s session, the Court determined the legitimacy of the appeal and decided to annul REC’s decision, because it was determined that the applicants of the list None of the Above did not provide the required number of valid signatures, the Administrative Court announced.

    Tonight, REC has again concluded that the NOPO list is valid, because its applicants had submitted 10,140 valid signatures. In tonight’s session of the Comission, it was stated that the applicant of the NOPO candidate list had fully amended the errors which obstructed the confirmation of the list.
    Source: www.021.rs, 30.04.2012, 20:35

    Therefore, REC had in a matter of hours checked more than 10,000 signatures, including their validity, dismissing the voter’s appeal and confirming the NOPO list. It did not deal with the number of voters who supported the list at the time of its submittal. Neither did REC did deal with the numbers which it found to be inconsistent. Why would it deal with such a trivial matter!

    The voter could only submit another appeal to REC, and then file a complaint to the Administrative Court. But today its May 1st, international worker’s day, REC does not meet during holidays, the elections are irreversibly set for May 6 – when Djoka will slay his dragon – a fair electoral game and honestly earned votes. Time is running out for legal remedies to control the work of an irresponsible institution called REC, an institution which threatens to compromise the elections again, to reduce the rights of citizens to fair elections to pre-1996 level.

    Why?

    As in any criminal case, at this moment (at the beginning of the investigation) only different versions can be formed.

    I’ll start off with the “sophisticated” one:

    The would-be left (DS+SPS) wants to disperse the so called Right and by diffusing votes to reduce the SNS’s chances to form a coalition government.

    I follow that with an oxymoronic version:

    Well, in a parliamentary democracy there can be no protest vote, with white votes. Form a political party, promote its program, find Djoka, and you’ll get NOPO, all in accordance with our totalitarian democracy.

    This one should not be dismissed either:

    Consider your citizens illiterate, add NOPO to the mix, and those among them who want to cast a blank vote will fall for it and choose NOPO.

    Add to that:

    _____________________

    Sacrificing the human right to free elections, ridiculing the enthusiasm of “walkers”, including the “keepers of the flame”, which have no grudges against REC, shuffle the cards of REC and the Court, just as the undying Milosevic did at one time – ineffectively.

     
    Translated by Ivica Pavlovic

    Peščanik.net, 05.05.2012.

     
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