Supreme Administrative Court of the Slovak Republic declares another election null and void

Election of the mayor of the municipality of Bystrany

The plaintiff, by an action delivered to the court on 8 November 2022 (via electronic mailbox), sought a decision on the unconstitutionality and illegality of the elections in the electoral district of Bystrany (Spišská Nová Ves district). He requested the court to rule that the election of the mayor of the municipality of Bystrana held on 29 October 2022 be declared null and void, referring to the provision of Article 312j(2)(a) of the Administrative Procedure Code.

The plaintiff is a candidate for mayor of the municipality who came second with 329 votes. The defendant came first with 378 votes.

In his election action, the plaintiff pointed out that the defendant did not meet the conditions for exercising the passive right to vote (Article 6 of Act No 180/2014 Coll. on the conditions for exercising the right to vote and on amending and supplementing certain acts, as amended), as he had been convicted of a deliberate criminal offence and his conviction had not been expunged.

Based on all the above facts, respecting the principle of substantive understanding of the protection of constitutionality, the Supreme Administrative Court in the matter of the alleged illegality and unconstitutionality of the election of the mayor of the municipality of Bystrany decided to declare the election null and void, since the evidence established that at the time of the contested election, on 29 October 2022, the defendant did not meet the statutory conditions for the passive right to vote, as he had been finally convicted of a deliberate criminal offence and his conviction had not yet been expunged at that time (Section 6(b) of the Act on the conditions for exercising the right to vote and on amending and supplementing certain laws).

In the election action František Žiga c/a Gejza Kandráč, the Panel No. 11 was composed of: the President of the Panel JUDr. Jana Hatalová, PhD. (Judge-rapporteur) the members of the Panel JUDr. Zdenka Reisenauerová, JUDr. Pavol Naď, Mgr. Michal Novotný, JUDr. Zuzana Šabová, PhD.

Elections to the Municipal Council in Dolný Kubín in electoral district No. 3

The plaintiff, by an action delivered to the court on 9 November 2022, sought a decision on the unconstitutionality and illegality of the elections to the Municipal Council in Dolný Kubín in electoral district No. 3, held on 29 October 2022, on the grounds of violation of Section 55(3), second sentence, of Act No. 180/2014 Coll. on the conditions for exercising the right to vote and on amendment and supplementation of certain acts.

The plaintiff considers that the elections to the Municipal Council in Dolný Kubín were not held in accordance with the law. It stated that the plaintiff is a political party which filed a valid candidate list pursuant to a special regulation in accordance with Section 312c(b) of the Administrative Procedure Code.

As he further stated in his election action – the plaintiff’s candidate was registered in the list of candidates for the electoral district No. 3 of the Municipal Council in Dolný Kubín. It was registered in the list of candidates under serial number 5. In that connection, he referred to the wording of the second sentence of Article 55(3) of Act No 180/2014 Coll. on the conditions for exercising the right to vote and on amendments and additions to certain Acts, under which ‘the order of candidates on the ballot paper must be identical to the order on the registered list of candidates’.

The plaintiff pointed out that on the registered list of candidates the candidate was registered under serial number 5, whereas on the ballot paper the candidate was marked under serial number 6.

The plaintiff’s candidate campaigned under the number 5, i.e. under the serial number on the registered list of candidates. Moreover, the candidate Ľ. Ť., marked on the ballot paper under serial number 5, which serial number should have been assigned to the plaintiff’s candidate, withdrew his candidature for the Municipal Council in Dolný Kubín before the elections within the period prescribed by law.

The plaintiff’s candidate informed first the election commission of the discrepancy between the serial number on the ballot paper and the serial number on the registered list of the plaintiff’s candidate, which stated “that the change of order is not significant”, then personally to the head of the municipal authority and also to the State Election Commission by e-mail on the day of the elections at 12.20 p.m., and then to the head of the municipal authority by e-mail at 12.20 p.m. on the day of the elections. The State Election Commission responded to the plaintiff candidate’s complaint by email on the day of the election at 11.12 p.m., announcing the adoption of Rulling Case No. 30/5/20 dated October 29, 2022, in which, among other things, the State Election Commission informed the plaintiff candidate “The State Commission on Elections and Control of Political Party Financing has discussed the complaint of L. G. H. and notes that at the time the complaint was lodged it was no longer possible to arrange a remedy”.

The Supreme Administrative Court, after careful consideration of all the circumstances of the case, evaluating the evidence taken individually and in the aggregate, concluded that the elections to the Municipal Council in Dolný Kubín held on 29 October 2022 were conducted in an unlawful and unconstitutional manner. The violation of Act No 180/2014 Coll. on the conditions for exercising the right to vote and on amending and supplementing certain acts is the fact that the ballot paper for the elections to the Municipal Council in Dolný Kubín on 29 October 2022 in electoral district No. 3, where two deputies were elected, did not list the candidates in alphabetical order according to their surname, as required by Article 175(3) of the aforementioned Act.

In the electoral action national coalition/independent candidates c/a Civic Conservative Party, the Panel No. 11 was composed of: the President of the panel JUDr. Jana Hatalová, PhD. (Judge-rapporteur) and the members of the panel JUDr. Zdenka Reisenauerová, JUDr. Pavol Naď, Mgr. Michal Novotný. JUDr. Zuzana Šabová, PhD.