Protests in Serbia Archive
Legal Aspects of 1996 Elections in FR Yugoslavia

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The election procedure has showed the following systemic irregularities:

1. Electoral lists were not available to all participants in the elections. These lists are established by state organs and can be consulted only by interested persons regarding details concerning the individuals in question but cannot be consulted as a whole. Thus, neither the citizens nor the political parties participating in the elections have ever been able to have access to electoral lists as a whole.

2. All electoral bodies (ballot boards and electoral commissions) are composed so that 3 members represent the state and the remaining members represent political parties that have running candidates. In the absence of any democratic culture, the three _state members_ do not represent the state as an institution but the ruling party. Thus, the Socialist Party of Serbia (SPS) has always had the majority in the electoral bodies.
   

3. All preceding elections have invariably shown a trend against the ruling party. Subsequently the electoral laws have been changed, especially in part dealing with electoral districts.
   

4. Electoral laws governing federal, republican, provincial, city and municipal elections have not been brought to harmony. This renders the election procedure opaque and does not allow persons who are not highly qualified lawyers to exercise effective control and monitoring. This explains why few foreign observers have been able to register any irregularities.

5. The already outrageous control over the media has been constantly and brutally increased after the elections so that at the moment there is no independent TV station in Serbia. Only one radio station (B 92) is independent but it can be heard only in downtown Belgrade while its signal is constantly disturbed.

Apart from these systemic irregularities, the democratic opposition achieved a great success on 1996 local elections in Serbia. The ZAJEDNO Coalition won the elections in 11 out of 16 municipalities in Belgrade (according to election records the Coalition won 70 out of 110 mandates for the Belgrade City Assembly). The Coalition won the local elections in the following major cities in Serbia: Belgrade, Novi Sad, Kikinda, Zrenjanin, Vrsac, Jagodina, Kragujevac, Kraljevo, Nis, Cacak, Pirot, Uzice, Trstenik as well as in several small townships. Between 60 and 70 percent of the population of Serbia lives in the cities where the ZAJEDNO Coalition won the local elections.

However, after the records of the results at individual electoral places were signed and copies thereof delivered to the representatives of parties, outrageous stealing took place. In some cases municipal electoral commissions were changing the results, while in other cases this was done by courts acting on the SPS complaints.
The following techniques have been used for the nullification of the elections:

1. Although the representatives of the SPS have duly signed the records, in many cases they subsequently addressed hundreds of complaints alleging irregularities. Using the state-party majority in electoral commissions they then canceled the results without giving any proper reasoning. The most frequent ground for cancellation has been that it had been discovered that votes were not properly counted or that there were many invalid ballots. However, the electoral material was in hands of the state organs from the moment the ballots were counted and the records duly signed.

2. In the city of Nis, where the opposition won by a landslide (41 representatives for the ZAJEDNO Coalition and 21 for the SPS), the city electoral commission changed the results. This constitutes an ultra vires act as it only is competent to verify the results or to order another round of elections. Instead, the commission counted the votes again changed the results and declared that the SPS won 37 mandates and the ZAJEDNO Coalition 33.

3. At numerous ballots the first copy of the record disappeared once it was determined that the ruling party had lost the election, and that was used as a reason for nullification. Although electoral commissions have been offered the copies of the record which were handed to political parties, the commissions refused to accept them saying that these were invalid copies while the missing first copy was declared to be the only original containing valid results. This is a violation of the provisions of the election law. At the same time, criminal proceedings have not been instituted against persons that allegedly lost the first copy of the record, because all of them are members of the SPS and appointed as such for presidents of the ballot boards. It should be noted that this is a serious crime under the election law.

4. In cases where the ZAJEDNO coalition lodged complaints since there were more party lists in the ballots than voters that exercised their right to vote, the electoral commissions dismissed the complaints saying that this does not affect the results. There were cases (e.g. in township of Vlasotince) where the difference between the SPS candidate and the ZAJEDNO candidate was only one vote, but the election commission decided that surplus of 161 party lists in the ballot could not affect the legality of the election procedure. According to the election law, elections must be repeated at the ballot place where there were more party lists in the ballots than voters.

5. In some cases the SPS representatives in ballot boards, realizing that the SPS candidate had lost, refused to sign the record. Subsequently, elections at that particular ballot were nullified. This is in spite of the fact that a party representatives refusal to sign the record is not a cause for nullification.

6. The total of nullified results shows that hundreds of the SPS complaint were accepted. At these ballot places the ZAJEDNO Coalition boycotted the elections. The nullification on such a massive scale indicates that these were not repeated elections on some ballot places but effectively a third round of the elections.

I. Elections for Members of the Belgrade City Assembly

1. According to the results based on election records from ballots where there have been no initial complaints by the SPS, the ZAJEDNO Coalition won 70 mandates in the Belgrade City Assembly. The City Electoral Commission accepted complaints lodged by the SPS and nullified elections on 10 ballots. The Electoral Commission also ordered that the elections be repeated on respective ballots. At that moment, the ZAJEDNO Coalition still had a majority in the Belgrade City Assembly (total of 110 members) and a chance to win even more on the repeated ballots. However, the SPS lodged complaints to the court alleging irregularities on all ballots where it had lost, irrespective of whether it previously complained to the City Electoral Commission or not and whether the Commission considered a complaint or not. The First Municipal Court, which is a court competent to decide in these matters, did not notify the ZAJEDNO Coalition about these complaints nor the complaints were sent to the ZAJEDNO Coalition for a response. Judgments of the First Municipal Court were delivered within 48 hours, all of them accepting SPS complaints.

2. The judgments dealing with the SPS complaints were sent to the City Electoral Commission. The judgments were handed to the ZAJEDNO Coalition more than 48 hours after they were delivered, and only after repeated requests to the president of the First Municipal Court, the president of the City Electoral Commission, as well as the president of the Supreme Court of Serbia and the Serbian Minister of Justice.

3. The judgments of the First Municipal Court nullified elections for 33 candidates of the ZAJEDNO Coalition, all of whom, according to the election records, won most of the votes at the ballots. Reasoning of these judgments is legally not sustainable. The Court emphasized that the complainant (SPS) claimed that the City Electoral Commission had not considered its complaints at all. The Court accepted this claim although the Minutes of the City 3/1277 clearly show that the Commission had considered and decided upon every complaint lodged by the SPS. However, the Court did not have access to the Minutes of the City Electoral Commission No. 13-3/1277, and the ZAJEDNO Coalition became aware of this only after it received the judgments.
   Furthermore, even if the claims of the SPS were true, the question is what would have been the object of SPS complaints to the Court since there had been no decision of the Commission against which a complaint could have been lodged (Article 40a, para. 3, of the Law on the Territorial Organization and Local Government of Serbia provides that a party may complain to the court only if it previously complained to the electoral commission and the commission refused the complaint).

   The reasoning of the First Municipal Court shows not only that the Court has ignored the law and elementary logic but also the extent of the arrogance and unscrupulousness of the regime. Also, it undermines the confidence of citizens in courts and other judicial organs.

4. In the nullification judgments the First Municipal Court ordered that the elections be repeated at respective ballots. The City Electoral Commission ordered that the new elections shall be held on Wednesday, 27 November 1996, which is a working day. The ZAJEDNO Coalition decided to boycott the repeated elections in Belgrade. As far as other cities in Serbia are concerned, the decision on boycott is left to the local units of the ZAJEDNO Coalition. At the repeated elections in Belgrade, the SPS won at almost all ballots and currently has 58 mandates (out of 110) in the Belgrade City Assembly. The City Electoral Commission ordered new elections at nine ballots.

II. Election for Members of the Municipal Assemblies in Belgrade

1. At Savski Venac municipality in Belgrade, the Supreme Court of Serbia (acting on extraordinary legal remedy petition for extraordinary reexamination of judicial decision - lodged by the SPS) nullified the second round of elections on all ballots and ordered new elections for the members of the municipal assembly, with reasoning that the mandate of the Municipal Electoral Commission ended on 16 November 1996. Even if this were the case (which is not certain at the moment) there is no reason why would the end of the mandate of the Electoral Commission be the reason for the nullification of the elections. Namely, the results of the elections were verified by duly appointed members of the ballots boards, and the Electoral Commission only has a task to determine the results of the elections. These results could have been determined by the Electoral Commission - there is no reason whatsoever why the complete elections for the Savski Venac Assembly should be nullified.

2. At Palilula and Novi Belgrade municipalities, the municipal electoral commissions nullified a large number of election results of the second round on the basis of complaints lodged by the SPS. At the moment, even after the _third_ round of elections, it is not certain who won the majority of mandates in these municipal assemblies.

III. Elections for Members of the Municipal Assembly in Nis

1. The City Electoral Commission of Nis changed the election results by changing the elections records and determining that the winner is the SPS candidate instead of the ZAJEDNO candidate who in fact won the majority of votes. This was done in cases of 13 candidates for members of the Municipal Assembly. This way the victory of the ZAJEDNO Coalition in Nis has become the victory of the SPS. The ZAJEDNO Coalition lodged a complaint in the Municipal Court in Nis against this decision of the City Electoral Commission. According to the information received by the Democratic Party in Nis (a member of ZAJEDNO), none of 50 judges of the Municipal Court in Nis accepted to act as a president of the judicial chamber in these proceedings or to sign beforehand prepared judgments refusing the complaints lodged by the ZAJEDNO Coalition. For this reason, a judge from Bela Palanka, Ms. Ruzica Stojiljkovic, was brought to Nis to sign the judgments (it should be noted that judge Stoiljkovic is the president of the court in Bela Palanka and the president of the electoral commission in Bela Palanka. During the elections in Bela Palanka, she was deciding in the same matter twice, first as the president of the electoral commission and subsequently in the court proceedings as the president of the court). Members of the chamber were judges Ms. Suzana Djuric and Ms. Ksenija Dzombic. Since these judgments were signed by a person who is not a member of the court competent to act in Nis (i.e. not a member of the Nis Municipal Court), they are, according to Yugoslav laws, non-existent legal documents without any legal validity and legal force.

   Electoral Commission No. 13-

2. The ZAJEDNO Coalition has lodged criminal complaints against the president and members of the City Electoral Commission in Nis on charge of forgery of election records. In some cases, forgery is quite obvious, since they just crossed and changed the numbers on election records, on even using more sophisticated methods. Until this moment, no criminal proceedings have been instituted in Nis on the basis of these criminal complaints.

3. On the repeated second round of elections in Nis, which were boycotted by the ZAJEDNO Coalition, the SPS won the majority of mandates in the Nis municipal assembly.

IV. Legal Evaluation of the Current State of Judicial and Other Decisions

1. The results of the second round of city and municipal in Serbia have been nullified on a large scale by decision of municipal and city electoral commissions and by court judgments. As a rule, this has happened in cases where the ZAJEDNO Coalition candidates received the majority of votes and won. Only in Belgrade, results at 236 ballots were nullified and elections repeated. In Serbia, this happened at more than 500 ballots. This is the greatest nullification of elections since Yugoslavia was created in 1918.

2. Legal methods used for the nullification of election results, which are transparent from the reasoning of judicial decisions and some decisions of electoral commissions (since most of the decisions of electoral commissions have no reasoning whatsoever), show that the regime is unscrupulous, has a total control over judiciary, and totally ignores the laws of Yugoslavia.

3. Legal proceedings after the second round of municipal and city elections in Serbia were used as a form for the nullification of victory of the opposition and a way for insuring a possible victory of the ruling party in the next round of elections. In short, the political and legal strategy is aimed at exhausting and manipulating electorate, as well as provoking protests of citizens which could be used as a reason for declaring a state of emergency in Serbia.

4. The nullification of elections on such a large scale in fact means to hold new elections and ignore already expressed will of the citizens of Serbia. It also indicates that a similar nullification could be expected in case the opposition wins the repeated elections. This contributed to the decision of the ZAJEDNO Coalition to boycott the repeated elections. In Belgrade, the repeated elections were nullified on 9 ballots and the new elections were ordered for 1st and 7th December 1996. The same would have happened at other ballots as well, in case the ZAJEDNO Coalition had gone for the _third round_ and won.

5. The ZAJEDNO Coalition lodged 34 actions for the renewal of procedure in the First Municipal Court in Belgrade asking for the reconsideration of judgments accepting SPS complaints and nullifying victory of the ZAJEDNO Coalition. The judgments were based on evidence submitted by the City Electoral Commission, i.e. Minutes of the City Electoral Commission No. 13-3/1279, which does not show that the Commission had considered and refused the complaints lodged by the SPS. However, the ZAJEDNO Coalition received from its representative in the City Electoral Commission Minutes of the Commission No. 13-3/1277 which show that the Commission had considered and refused the complaints of the SPS. This was a basis for the action for the renewal of procedure, and the evidence was submitted together with the petition. Since this is a new evidence which the court did not have a chance to consider, the action is founded and the court should decide to renew the procedure.
   The ZAJEDNO Coalition also lodged 34 petitions in the Supreme Court of Serbia for extraordinary reexamination of the judgments of the First Municipal Court, because the Coalition considers that the First Municipal Court had violated substantive and procedural provisions of the law.
   

Procedural violations are the following:

1. The First Municipal Court, as well as the City Electoral Commission, did not consider the ZAJEDNO Coalition as a party to the proceedings, in violation of Article 15 of the Law on Judicial Review;
   

2. The Court violated the principle that both sides should be heard (Audi alteram partem): it did not notify the ZAJEDNO Coalition about the SPS complaints and consequently the Coalition could not respond to the complaints; the Court also did not send its judgments to the Coalition.
   

3. Since the Court was applying the Law on Judicial Procedure, it could only decide on lawfulness of the decisions of the City Electoral Commission. Thus, although it was bound by the facts as determined by the City Electoral Commission in its Minutes, the Court acted in a different way.
   

Substantive violations are the following:

1. The Court acted ultra vires because in the judgments accepting the SPS complaints it also ordered that the new elections shall take place and determined their time and venue. It is the competence of electoral commissions, not of courts, to order a new round of elections as well as their time and venue (Article 38(h) of the Law on the Territorial Organization and Local Government of Serbia). Besides, the petitions to the Supreme Court of Serbia point to the Minutes of the City Electoral Commission showing that the Commission had considered and refused complaints lodged by the SPS.

2. The Supreme Court was asked to reexamine judgments of the First Municipal Court and refuse the complaints of the SPS, thus confirming the previous decision of the City Electoral Commission that the ZAJEDNO Coalition had won 60 mandates in the City Assembly. It was also asked to issue an injunction ordering that the repetition of the second round of elections be postponed.

3. Since an extraordinary legal remedy was lodged in the Supreme Court of Serbia, the ZAJEDNO Coalition also submitted 34 petitions for the postponement of the repetition of the second round of elections to the First Municipal Court.

4. The Supreme Court of Serbia refused all the petitions within 48 hours. All the judgments were drafted in the same way, with a similar laconic reasoning. The Court said that the judgments of the First Municipal Court were correct and confirmed them. Arguments forwarded by the ZAJEDNO Coalition were addressed in a general manner without going into details.

It is interesting to note that although the Supreme Court of Serbia sent its judgments to the ZAJEDNO Coalition it did not found that the First Municipal Court had made an error by not sending its judgments to the Coalition!
The First Municipal Court has not considered actions for the renewal of procedure for 7 days, thus not respecting the practice of the Supreme Court of Serbia that election matters should be decided within 48 hours. Decisions of the First Municipal Court are still expected.
The ZAJEDNO Coalition had to initiate all the above mentioned legal remedies without having judgments of the First Municipal Court. Only after several interventions the Coalition received copies of the judgments and supplemented its initial submissions. It also lodged 11 new actions and 11 new petitions. The total number of submissions, lodged by the ZAJEDNO Coalition and related just to the elections for the Belgrade City Assembly is 45.

In the meantime, the ZAJEDNO Coalition petitioned the Federal Constitutional Court by lodging a constitutional complaint alleging violations of the right to vote (Article 34 of the Constitution of the FR Yugoslavia), right to equal protection before courts (Article 26 of the Constitution) and prohibition of discrimination (Article 20 of the Constitution). The complaint also alleged violations of the rights guaranteed by Articles 2, 25, 26 and 14 of the International Covenant on Civil and Political Rights. FR Yugoslavia signed and ratified the International Covenant.

Decision of the Federal Constitutional Court is still expected. It should be noted that the Federal Constitutional Court has never accepted a constitutional complaint regardless on what grounds it has been lodged.

President

Goran Svilanovic
(1 December 1996)

Center for Antiwar Action and
Council for Human Rights
Gospodar Jovanova 44
11000 Belgrade, Yugoslavia
tel/fax 99 381 635 813