The election of the mayor and the election to the municipal council of the municipality of Haluzice are null and void

The election action was brought by the unsuccessful candidate for mayor and municipal councillor, as well as by the political party for which she stood. The plaintiffs argued that in the short period before the local elections in the municipality of Haluzice on 29 October 2022, a large number of voters (24 voters) with no relevant connection to the municipality had registered to reside in that municipality, which could have affected the outcome of the elections. In this respect, reference was made to the case-law of the Constitutional Court of the Slovak Republic. 

Panel No. 12 of the Supreme Administrative Court of the Slovak Republic found that between 29 April 2022 and 14 December 2022, a total of 23 persons registered for permanent residence in the municipality of Haluzice, including 1 person on 1 August 2022, and a further total of 22 persons consecutively between 10 days and 1 day before the election (including 2 persons to the fire station building). Of the 23 persons, 17 persons deregistered from permanent residence in the municipality of Haluzice between 31 October 2022 and 12 December 2022. The deregistered persons, after deregistering from permanent residence in the municipality of Haluzice, all registered at the same address at which they were registered before they registered for permanent residence in the municipality of Haluzice, and these persons did not exchange their ID cards. After opening and checking the electoral documentation, it was found that all these 17 or 23 persons had participated in the elections.

In assessing the fundamental objection concerning the purposefulness of the registration of the aforementioned group of 23 persons for permanent residence in the municipality of Haluzice, Panel No 12 of the Supreme Administrative Court of the Slovak Republic, in accordance with the principle of continuity of competence set out by the Grand Panel of the Supreme Administrative Court of the Slovak Republic in its first judgment of February 2022, relied on the case-law of the Constitutional Court of the Slovak Republic, which it developed in the light of the specifics of the present case.

He recalled that anyone is free to register for permanent residence anywhere in the Slovak Republic. However, the exercise of the right to register for permanent residence anywhere in Slovakia is not without consequences and may, under certain conditions, lead to a finding that the elections are invalid. This may occur if the constitutional concept according to which the composition of municipal self-government bodies is to express the will of the inhabitants of the municipality intending to form an integral part of the personnel substratum of the territorial self-government is negated. Nor is the right to freedom of residence a right which is without responsibility.

The Panel stated that to conclude that the registration of permanent residence invalidated the election, the test of the purposefulness of the registration of permanent residence affecting the outcome of the election must be verified. This test consists of three steps. The Electoral Court may proceed to declare an election void if, in a legally flawless (i.e., non-violation of the law) process, (i) a significant number of residents have registered for permanent residence, (ii) for whom no connection to the place (municipality) has been established, and (iii) the registration for permanent residence of these residents occurs immediately before the election is held. These 3 conditions must be met simultaneously.

The Supreme Administrative Court of the Slovak Republic concluded that the critical group of voters that caused the 38.33% increase in voters in the municipality of Haluzice in the 10 days prior to the election (thereby satisfying steps (i) and (iii) of the test) did not even intend to have a formal (registration) connection to the municipality of Haluzice.

In the present case, in the case of the group of 17 voters, there was no formal intention on the part of the voter to be actually registered as a permanent resident in the municipality for any length of time at all, and not merely for the purpose of exercising the right to vote. It is evident that in fact three quarters of the voters who registered their permanent residence in the municipality of Haluzice a few days before the elections did not even have the intention of forming even a formal link to the municipality by registering their permanent residence there for at least a longer period of time. Nor did these voters have the will to incur certain transaction costs associated with a change of residence, such as the compulsory replacement of their identity card, which none of them undertook. Panel No. 12 concluded that step (ii) of the test is therefore also satisfied in this case without the need for further proof.

The registration of these voters as permanent residents can therefore be assessed as purposeful. Purposefully registered for permanent residence was thus a critical group of voters in the case at hand, which, due to its size, as already mentioned, could have influenced the outcome of the election and thus prevented the citizens-residents of the municipality of Haluzice, who have real ties to the municipality, from being represented in the local government bodies of the municipality of Haluzice as they wished.

In conclusion, the Supreme Administrative Court of the Slovak Republic appealed to the voters not to undermine the constitutional concept of the municipality as a unit of territorial self-government bringing together inhabitants who actually live on its territory or have other relevant ties to its territory, and who also intend to have, maintain and declare this connection externally by an administrative act in the form of a serious, with certain transaction costs associated with the registration for permanent residence. Otherwise, the electoral judiciary will have to react if a lawsuit is filed, and declare the municipal elections invalid repeatedly.

The decision was unanimous and is final on January 30, 2023.

In the election action of the Civic Conservative Party, Martina Jamborová c/a Miloš Madila, SMER – Social Democracy, HLAS – Social Democracy, the Panel No. 12 of the Supreme Administrative Court of the Slovak Republic, composed of: the President of the Panel, JUDr. Anita Filová (Judge-rapporteur); the Judges, JUDr. Elena Berthotyová, PhD.; prof. JUDr. Juraj Vačok, PhD.; JUDr. Monika Valašiková, PhD.; JUDr. Juraj Vališ, LL.M.