U.no.84/2009

U.no.84/2009

On the basis of Article 110 of the Constitution of the Republic of Macedonia, and Articles 56 and 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 10 February 2010, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. IT IS ESTABLISHED that the person Xhavid Rushani from the village of Zajas, has had his right to political activity violated, with the failure to accept his candidacy for the mayor of the Zajas Municipality at the local elections held in March 2009.

2. The final and effective Resolution no.01-31/2 of 6 February 2008, passed by the Municipal Electoral Commission – Zajas, IS ANNULLED.

3. This decision shall be published in the “Official Gazette of the Republic of Macedonia”.

4. Xhavid Rushani from the village of Zajas, Kichevo, through the lawyer’s office of Dragan P. Godzo and Aleksandar P. Godzo from Ohrid, filed a request with the Constitutional Court of the Republic of Macedonia for the protection of the freedoms and rights under Article 110 line 3 of the Constitution referring to the right to political association and activity, violated with the keeping of penal records which were not supposed to exist (lack of promptness), that is, failure to issue a certificate to the submitter that the conviction had been erased, with the Resolution no.01-31/2 of 06.02.2009 by the Municipal Electoral Commission in Zajas, and the Resolution of the Administrative Court URP.no.122/2009 of 06.02.2009 and with the failure to adopt a legal act – resolution – by the Municipal Electoral Commission-Zajas – upon a submitted request for resolution.

According to the statements in the request, the competent authorities (the Court and MOI) should have updated the penal records timely, pursuant to the legal consequences deriving from the Law on Amnesty (“Official Gazette of the Republic of Macedonia”, no.18/2002), since upon the entry into force of this Law the criminal procedure K.no.1149/01 before the Skopje I Skopje Basic Court against the submitter of the request was suspended. Such legal consequence should have been erased from the penal records ex officio, while the candidacy of the submitter should have been accepted. The submitter noted that for an identical case (existence of penal records), the Administrative Court had adopted a judgment with which the initially rejected candidacy of Rufi Osmani for mayor of Gostivar had been accepted, for identical reasons as in the concrete case with the submitter.

With the adoption of the challenged resolution by the Municipal Electoral Commission – Zajas and the Administrative Court, the submitter’s right to political activity was violated. The reason being that with the resolution passed by the Municipal Electoral Commission – Zajas, with which his candidacy was rejected, the submitter practically was not in a position to influence the state authorities to act promptly and to correct the unjustified existence of the penal records. With the Resolution by the Administrative Court, which was dismissed since the lawsuit was filed by an unauthorised person, the submitted had been denies access to court, and there were no reasons for that in the law.

Following the additional submittal of the complete evidence to the candidacy, the Municipal Electoral Commission – Zajas rejected to issue a resolution to the submitter and informed him verbally that his candidacy would not be accepted, and the petition request would not be considered. Therewith, the submitter had his right guaranteed under Article 24 of the Constitution denied, and according to it every citizen is entitled to submit petition requests to state bodies and other public services, and to receive an answer to them. Given the urgency of the procedures envisaged in the Electoral Code, the Municipal Electoral Commission – Zajas had to inform the submitter in writing about the legal destiny of the petition request with which the submitter made a supplement to the candidacy. With the failure to adopt a legal act upon the submitter’s request, the Municipal Electoral Commission – Zajas violated the submitter’s right to political activity, since the Administrative Court later on stated its view that it could not act and dismissed the lawsuit of the submitter as inadmissible, owing to the non-existence of a legal act – resolution of the Municipal Electoral Commission – Zajas upon the submitter’s request.

5. On the basis of the public hearing held on 22 October 2009, and the documentation submitted with regard to the case, at its session the Court found that the Municipal Electoral Commission – Zajas, on the basis of Article 67 paragraph 4 of the Electoral Code, passed a resolution no.01-31/2 of 06.02.2009, dismissing the List of a candidate for mayor of the Zajas Municipality submitted by the submitter Begzat Useini. According to the explanation in the Resolution, the candidate proposed for mayor of the Zajas Municipality, Xhavid Rushani, as apparent from the correspondence no.11-258/3 of 04.02.2009 by the State Electoral Commission for checks carried out in the Ministry of Interior in the penal records, did not meet the conditions for election defined in Article 7 paragraph 2 line 4 of the Electoral Code.

Displeased with the Resolution, the candidate for mayor, Xhavid Rushani, filed a lawsuit with the Administrative Court, through his proxy Dragan Georgiev, a lawyer from Skopje, stating that the statements in the Resolution that the abovementioned did not meet the conditions of Article 7 paragraph 2 line 4 of the Electoral Code were not true, since as apparent from the Certificate K.R.no.222/09 of 06.02.2009, issued by the Kichevo Basic Court and the notification by the Kichevo Police Station no.28.12.1/84 of 06.02.2009, the plaintiff was not sentenced, and there was no act of indictment brought against him. Therefore, it was proposed that the Administrative Court sustain the lawsuit, the challenged resolution be repealed and the candidacy of Xhavid Rushiti for mayor of the Zajas Municipality be accepted.

Deciding on the said lawsuit, on 06.02.2009 the Administrative Court passed its Resolution URP no.122/2009, with which the lawsuit of the plaintiff Xhavid Rushiti’s from the village of Zajas against the Resolution of the Municipal Electoral Commission Zajas no.01-31/02 of 06.02.2009 was dismissed. According to the explanation for the Resolution, following the insight into the entire evidence on the basis of which the resolution had been passed and against which the lawsuit had been filed, the Administrative Court found that the Municipal Electoral Commission Zajas had decided correctly when it had dismissed the list of candidate for mayor of the Zajas Municipality with the resolution against which the lawsuit had been filed. Furthermore, it is stated that the lawsuit was not filed by the authorised representative of the list of a candidate for mayor, but by the candidate for mayor himself, through his proxy – the lawyer Dragan Georgiev from Skopje, who under the legal provisions was not authorised to file a lawsuit, and given that the lawsuit had been filed by an unauthorised person the Court dismissed the same in the sense of Article 60 paragraph 1 of the Electoral Code.

On 07.02.2009, the candidate for mayor submitted an intervention to the State Electoral Commission (received in SEC on 07.02.2009, under no.11-258/4) in which he requested that the case rejecting his candidacy for mayor of the Zajas Municipality be analysed by applying the legal provisions of the Criminal Code (CC) of the Republic of Macedonia, the contents of the letter sent by the MOI for his conviction and the ground for erasure from the penal records by applying the provisions under Article 104 of the CC of the Republic of Macedonia and a legal decision be taken. Additionally, on 12.02.2009 the Resolution of the Skopje Court of Appeal, KS no.80/03 of 12.03.2003 and a certificate from the penal records were communicated to the State Electoral Commission and to the Municipal Electoral Commission – Zajas, as a proof that there was no legal obstacle to accept his candidacy.

On 15.02.2009, the submitter of the list Begzat Useini and the candidate for mayor Xhavid Rushani submitted an act – a request to the Municipal Electoral Commission Zajas and to the Skopje State Electoral Commission to pass a resolution, in which they noted that on 12.02.2009, at 11:50 h., they had submitted to the Zajas Municipal Electoral Commission the complete documentation for candidacy for mayor of the Zajas Municipality, which contained all the required writs and pieces of evidence pursuant to the Electoral Code and the acts of the State Electoral Commission, and that the same candidacy had been submitted to the State Electoral Commission at 14:05 h. They noted that they had been informed verbally by the members of the Zajas Municipal Electoral Commission that the candidacy had been rejected, owing to the existence of the previously noted resolution of the Administrative Court. By the date this request was submitted they had not received and answer to the candidacy submitted, to which they believed they were entitled. Accordingly, they requested that the Zajas Municipal Electoral Commission and the State Electoral Commission state their view in writing within the legally defined deadlines envisaged in the Electoral Code and inform in writing the submitters of the request thereof.

The Zajas Municipal Electoral Commission, judging that in the procedure for nominating a candidate for mayor at the local elections scheduled for 22 March 2009 its legal competences had been exhausted with regard to Xhavid Rushani’s submitted candidacy for mayor, since it had appraised the complete documents for the candidacy of the abovementioned once again and dismissed the list for a candidate as the candidate had not met the legal conditions, whereby the Administrative Court had also judged that the Commission had made a correct decision in the said case, did not act upon the submitter’s request for a repeated consideration and evaluation of the additionally submitted pieces of evidence, and did not pass a new resolution.

Given that neither a new resolution was passed by the Municipal Electoral Commission – Zajas, nor other written answer to the request was provided, on 15.02.2009 the submitter of the list, Bezgat Useini, filed a lawsuit with the Administrative Court requesting that the Court accept Xhavid Rushani’s candidacy for mayor of the Zajas Municipality.

On 16.02.2009, the Administrative Court passed its Resolution URP.128/09, dismissing the lawsuit of the plaintiff Begzat Useini from Zajas, a submitter of a list for accepting Xhavid Rushani’s candidacy for mayor of the Zajas Municpality, as inadmissible. According to the explanation of the Resolution, the Zajas Municipal Electoral Commission had not passed a resolution on the written petition request–supplement to the documents for candidacy for mayor of the Zajas Municipality of 12.02.2009 so that the plaintiff-submitter of the list in the sense of Article 67 paragraph 5 of the Electoral Code might file a lawsuit with the Administrative Court within 24 hours following the receipt of the resolution, as a result of which the lawsuit was rejected as inadmissible.

Additionally, during the preliminary procedure, the Administrative Court asked the Basic Court in Kichevo, being the competent court for the keeping of penal records according to the place of birth of the sentenced, to provide data from the penal records about the persons Xhavid Rushiti, whereby it received the Notification, SU.no.0301-436/09 of 10.06.2009, according to which at the time the candidacy for mayor had been submitted, there had been neither an act of indictment nor a proposal brought against the said person, nor an effective judgment where the same had been sentenced to an unconditional prison term of more than 6 months.

On 19 June 2009, upon the request of the Constitutional Court, the president of the Zajas Municipal Electoral Commission personally submitted the data requested from him: the document for data from the penal records which the Municipal Electoral Commission had appraised in the dismissing of the candidacy for mayor of the person Xhavid Rushani. It is a document that is classified as confidential, which the Ministry of Internal Affairs had communicated to the State Electoral Commission, SD.no.18.3-647 of 04.02.2009, which had later on been forwarded to the Municipal Electoral Commission, in which it was noted that the said person had a penal record in the records kept by the Ministry of Internal Affairs, with the following data: – With its judgment K.1149/01 of 29.09.2001, the Skopje 1 Basic Court sentenced him to one year imprisonment for the criminal offence under Article 396 paragraph 1 of the Criminal Code of the Republic of Macedonia.

According to the documentation enclosed with the request for the protection of the freedoms and rights of the abovementioned, the Skopje Court of Appeal passed its Resolution KS.no.80/03 of 12.03.2003, sustaining the request for amnesty of the defendant Xhavid Rushani from the village of Zajas – Kichevo and suspending the criminal proceedings against the defendant Xhavid Rushani before the Skopje 1 Skopje Basic Court under K.no.1149/01 based on the act of indictment of the Skopje Basic Public Prosecutor’s Office KO.no.2143/01 of 18.08.2001 for the criminal offence – Unauthorised possession of weapons or explosives under Article 396 paragraph 2 in connection with paragraph 1 of the Criminal Code owing to the existence of a legal ground envisaged in Article 1 paragraph 1 of the Law on Amnesty (“Official Gazette of the Republic of Macedonia”, no.18 of 08.03.2002).

Upon the request of the Constitutional Court, the Ministry of Internal Affairs, with its act Ev.no.183-68522/1 of 22.10.2009 communicated a notification according to which upon the request of the State Electoral Commission the Ministry of Internal Affairs had made checks and established that Rushani had a penal record, that is, the Skopje 1 Basic Court with its judgment K.1149/01 had pronounced him a prison term of one year, for a committed criminal offence under Article 396 paragraph 1 of the Criminal Code of the Republic of Macedonia, and for the situation established on 04.02.2009 a notification had been communicated to the State Electoral Commission (act no.sd.18.3-647 of 04.02.2009). Following this notification, on 06.02.2009, in the Kichevo Police Station Rushani filed a request for a certificate of non-conviction in which he noted that he needed it for his candidacy for mayor of the Zajas Municipality. As under Article 106 paragraph 5 of the Criminal Code nobody has a right to request evidence from the citizens about their non-conviction, Rushani was notified that there was no legal ground to issue him the certificate he had requested. Displeased with such notification, Rushani filed a new request to have a certificate for non-conviction issued to him, in which he noted that he needed it for the purposes of travelling abroad. Thereby, the officials pointed to him that the certificate requested could not be issued to him as he had penal record, that is, that in 2001 the Skopje 1 Basic Court had pronounced him a prison term of one year for a committed criminal offence under Article 396 paragraph 1 of the Criminal Code of the Republic of Macedonia. Rushani clarified that he possessed a resolution for amnesty for that judgment passed by the Skopje Court of Appeal in 2003, and on 12.02.2009 he submitted the same in the Kichevo Police Station, which was immediately entered in the penal records and on the same date he had a certificate of non-conviction issued to him for the purposes of him travelling abroad. On the basis of what was presented the Ministry of Internal Affairs clarified that it had communicated a notification to the State Electoral Commission about checks conducted in the penal records for the person Xhavid Rushani on 04.02.2009, while the resolution for amnesty was implemented on 12.02.2009, that is after Rushani himself had submitted it to the Kichevo Police Station.

6. Under Article 8 paragraph 1 lines 1 and 3 of the Constitution, the basic freedoms and rights of the individual and citizen recognised in international law and defined by the Constitution, as well as the rule of law, are fundamental values of the constitutional order of the Republic of Macedonia.

Under Article 20 of the Constitution, which is included in Chapter II – Basic freedoms and rights of the individual and citizen -, citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions. Citizens may freely establish associations of citizens and political parties, join them, or resign from them. The programmes and activities of the associations of citizens and political parties may not be directed at the violent destruction of the constitutional order of the Republic and at encouragement or incitement to military aggression or stirring up ethnic, racial or religious hatred or intolerance.

Pursuant to Article 22 of the Constitution, every citizen acquires the right to vote upon reaching 18 years of age. The right to vote is equal, universal and direct, and is exercised at free elections by secret ballot. Persons deprived of the right to practice their profession do not have the right to vote.

Under Article 23 of the Constitution, every citizen has the right to take part in the performance of public functions.

From the constitutional provisions noted it arises that the fundamental value of the constitutional order of the Republic of Macedonia are the basic freedom and rights of the individual and citizen recognised in international law and defined by the constitution and that in the sphere of these freedoms and rights also belong the political freedoms and rights of the citizen that are expressed through the right to political association and activity, as a form and way of the participation of the citizen in the political life of the country.

Freedom of political association and activity, as a basic right, is exercised directly on the basis of the Constitution, whereby the Constitution notes the cases in which this freedom of the individual and citizen may be restricted.

On the basis of the constitutional provisions notes, it arises that one of the political rights is the voting right which may be active and passive. Defining that every citizen upon turning 18 acquires the voting right, the only restriction in the Constitution is that persons who have been deprived of their right to practice their profession do not have the right to vote.

Under Article 110 line 3 of the Constitution, the Constitutional Court of the Republic of Macedonia protects the freedoms and rights of the individual and citizen relating to the conviction, conscience, though and public expression of thought, political association and activity and prohibition of discrimination of citizens on grounds of their sex, race, religious, national, social and political affiliation.

Article 7 paragraph 2 of the Electoral Code (“Official Gazette of the Republic of Macedonia”, no.40/2006, 136/2008, 148/2008 – correction, 155/2008 – correction, and 163/2008 – correction) defines that every national of the Republic of Macedonia has the right to be elected as a representative, member of a council and mayor, if:
– he/she has turned 18;
– he/she is entitled to practice his/her profession;
– he/she is not serving a prison term for a committed criminal offence, and
– he/she has not been convicted with an effective court decision to an unconditional prison term of more than six months.

Under Article 17 of this Code, bodies for the conduct of the elections are:
– the State Electoral Commission,
– the municipal electoral commissions and the electoral commission of the City of Skopje,
– the electoral boards, and
– the electoral boards for voting in the diplomatic-consular missions of the Republic of Macedonia.

Pursuant to Article 37 paragraph 1 of the same Code, the municipal electoral commission and the Electoral Commission of the City of Skopje see to the legality in the preparation and conduct of the elections in accordance with this Code and supervise the work of the electoral boards.

Under Article 60 paragraph 1 of this Code, the right to submit a list of candidates for representatives, a list of candidates for members of a council, that is a list of a candidate for mayor lies with the registered political parties individually, coalitions, as well as a group of electors (hereinafter: a submitter of a list). Under paragraph 4 of this Article, the list of candidates is signed personally by an authorised representative of the submitter of the list. Pursuant to paragraph 6 of the same Article, if a submitter of the list of candidates is a group of electors, the title of the list is noted as “group of electors” and according to the initial letter of the first and last names of the submitter of the list.

Pursuant to Article 65 paragraph 1 of the Electoral Code, the list of candidate, that is candidates, is submitted in a form prescribed by the State Electoral Commission. Under paragraph 4 of the this Article, when the submitter of a list of a candidate, that is candidates is a group of electors, the required number of signatures defined in Article 61, that is Article 62 of this Code, must also be submitted.

Under Article 67 paragraph 1 of this Code, upon receiving the list of candidate, that is candidates, the state, that is, municipal electoral commission, that is the Electoral Commission of the City of Skopje, decides whether the same has been submitted within the time limit defined in accordance with the provisions in this Code. Under paragraph 2 of this Article, if the State, that is municipal electoral commission, that is the Electoral Commission of the City of Skopje finds that there are certain irregularities in the list, it shall call upon the authorised representative of the submitter of the list, that is the first signed representative in the list of candidate, to remove the irregularities within 48 hours after receiving the lists. Under paragraph 4 of the same Article, if the State, that is municipal electoral commission, that is the Electoral Commission of the City of Skopje finds that the lists have been submitted untimely, that is the irregularities or failures found have not been removed by the submitters of lists within the time limit defined in paragraph 2 of this Article, it shall dismiss the submitted list with a resolution within 24 hours after receiving the lists. Under paragraph 5 of this Article, a lawsuit may be filed against the resolution of the municipal electoral commission that is the Electoral Commission of the City of Skopje referred to in paragraph 4 of this Article with the Administrative Court, within 24 hours after receiving the resolution. Pursuant to paragraph 7 of the same Article, the Administrative Court is required to take a decision within 24 hours after receiving the lawsuit.

Under Article 69 paragraph 3 of this Code, the municipal electoral commission shall announce the defined single lists of candidates for members of a council, that is, a list of candidate for mayor, 25 days at the latest prior to the date scheduled to hold the elections in all inhabited places and at the electoral polls in the municipality.

Under Article 2 paragraph 1 of the Law on Administrative Litigation (“Official Gazette of the Republic of Macedonia”, no.62/2006), in the administrative litigation the court decides on the legality of individual acts adopted in the electoral procedure and of the individual acts on election, appointment and discharge of holders of public offices, if that is defined by law, as well as on the acts on appointment, designation and discharge of managing civil servants, unless otherwise defined by law. Under paragraph 6 of this Article, in case the acts of this Article are contested in an administrative litigation, the provisions of this law shall apply to the procedure, unless otherwise defined by other law.

Pursuant to Article 3 paragraph 1 of this law, a natural or legal person has the right to initiate administrative litigation, if it considers that the administrative act has violated some of her/his rights or direct interest based on law.

Under Article 1 paragraph 1 of the Law on Amnesty (“Official Gazette of the Republic of Macedonia”, no.18/2002), this Law exempts from prosecution, discontinues the criminal proceedings and fully exempts from execution of the sentence to imprisonment (hereinafter: amnesty), citizens of the Republic of Macedonia, persons with a legal stay, as well as persons having property or family in the Republic of Macedonia (hereinafter: persons), for whom there is a reasonable doubt to have prepared or committed criminal offences related with the conflict in 2001, by 26 September 2001 inclusive. Under paragraph 2 of the same Article, the amnesty also applies to persons who even prior to 1 January 2001 prepared or committed criminal offences in relation to the 2001 conflict. Pursuant to paragraph 3 of the same Article, the amnesty referred to in paragraphs 1 and 2 of this Article: – exempts the persons for whom there is a reasonable doubt to have prepared or committed criminal offences related with the conflict by 26 September 2001 from prosecution for a criminal offence under the Criminal Code and other law of the Republic of Macedonia; – suspends the criminal procedure for criminal offences under the Criminal Code and other law of the Republic of Macedonia against the persons for whom there is a reasonable doubt to have prepared or committed criminal offences connected with the conflict by 26 September 2001; – fully exempts from execution of the prison term for criminal offences under the Criminal Code and other law of the Republic of Macedonia the persons who prepared or committed criminal offences related with the conflict by 26 September 2001, and – defines the erasure of the conviction and repeals the legal consequence of the conviction by 26 September 2001 inclusive.

Pursuant to Article 106 paragraph 1 of the Criminal Code (“Official Gazette of the Republic of Macedonia”, nos.37/1996, 80/1999, 4/2002, 43/2003, 19/2004, 60/2006, 73/2006, 7/2008, and 139/2008), the penal records are kept by the first instance court competent according to the place of birth of the convict.

In the procedure for conducting local elections in March 2009, according to the Overview of the documents required that are enclosed while submitting the list of candidate, that is lists of candidates for the election of a President of the Republic of Macedonia, mayor and members of a council (posted on the website of the State Electoral Commission), the checks of non-conviction with an effective court decision to an unconditional prison term of more than six months for the candidates for mayor of a municipality, that is of the City of Skopje, are made by the Municipal Electoral Commission, that is the Electoral Commission of the City of Skopje in cooperation with the State Electoral Commission through the Ministry of Internal Affairs.

On the basis of the constitutional and legal provisions noted, the held public debate and the established facts of the case, the Court finds that the right to political activity of the person Xhavid Rushani was violated, through the failure to accept his candidacy for mayor of the Zajas Municipality at the local elections held in March 2009.

According to the Court, it is undoubted that with its resolution KS.no.80/03 of 12.03.2003 the Skopje Court of Appeal suspended the criminal procedure against the abovementioned before the Skopje 1 Skopje Basic Court under K.no.1149/01 upon the act of indictment of the Skopje Basic Public Prosecutor’s Office KO.no.2143/01 of 18.08.2001 for the criminal offence – Unauthorised possession of weapons or explosives under Article 396 paragraph 2 in connection with paragraph 1 of the Criminal Code owing to the existence of a legal ground envisaged in Article 1 paragraph 1 of the Law on Amnesty (“Official Gazette of the Republic of Macedonia”, no.18 of 08.03.2002). This fact was not taken into consideration by the Zajas Municipal Electoral Commission and the Administrative Court in the determination whether the person met the conditions for a candidate for mayor, defined in Article 7 paragraph 2 line 4 of the Electoral Code, as a result of which it was incorrectly established that he had been sentenced to a prison term of one year for the offence for which he had been granted an amnesty, and consequently his candidacy for mayor was dismissed on that ground.

The fact that the data about conviction of the person, according to the instruction by the State Electoral Commission, was requested and provided only from the Ministry of Internal Affairs, which during the procedure proved not to have updated records, instead from the basic court according to place of residence of the person, as a legally authorised body to keep penal records, according to which records (Certificate issued by the Kichevo Basic Court, Kr.no.222/2009 of 06.02.2009) there was no act of indictment brought against the person Xhavid Rushani which entered into legal force and no ineffective acquitting judgment was passed on the territory of the Kichevo Basic Court, which certificate was issued to the abovementioned for personal needs – candidacy for mayor and might not be used for other purposes, obviously led to an incorrect conclusion by the electoral bodies that the person did not meet the legally prescribed conditions for running for mayor, as a result of which his candidacy was dismissed.

Therefore, of significance is that the Zajas Municipal Electoral Commission, being the competent body for conducting the elections, and the Administrative Court, as the competent court to decide in administrative litigation on the legality of the individual acts adopted in the electoral procedure, missed the possibility to correct the apparent error that occurred owing to the incorrect data from the penal records of the abovementioned and to establish the correct facts of the case, which is their legal obligation. Thus, although the abovementioned additionally, within the time for submitting candidacies for mayor, submitted the proof of amnesty from which it clearly arose that their initial conclusion that the abovementioned did not meet the disputable condition for candidate for mayor was wrong, recalling the absence of process presuppositions in the Electoral Code for consideration and decision-making upon the request, failed to settle the request, that is dismissed the request of the abovementioned to act in line with the newly submitted evidence, whereby they enabled, without any fault of the abovementioned, and as a result of failures in the handling by the competent authorities conducting the electoral procedure, the abovementioned to lose his right to take part in the elections for mayor of the Zajas Municipality in the local elections held in March 2009, thereby violating his right to associate and act politically.

According to the Court, in the conduct of the electoral procedure the Zajas Municipal Electoral Commission and the Administrative Court were obliged to interpret and apply the law in favour of the citizen, and not to his/her detriment, as it was done in the concrete case. That means that these authorities were obliged to establish the correct facts relevant for the case, in which sense they were required to accept and appraise the evidence that was submitted to them during the procedure, given that pursuant to Article 66 paragraph 4 of the Electoral Code, the list of candidates for mayor is submitted by the authorised proposers to the competent electoral commission 35 days at the latest prior to the date of the holding of the elections, or in this concrete case, by 15 February 2009, given that the elections were scheduled for 22 March 2009. As apparent from the documentation submitted to the Constitutional Court, it is undisputed that on 12.02.2009 the person Xhavid Rushani had submitted to the State Electoral Commission and to the Municipal Electoral Commission – Zajas, the Resolution of the Skopje Court of Appeal KS.no.80/03 of 12.03.2009 and a certificate from the penal records, as a proof that there was no legal obstacle to accept his candidacy, whereby the evidence required to establish the conditions whether the person met the legally defined conditions for a candidate for mayor was submitted timely, within the legal time limit. According to the Court, the Municipal Electoral Commission – Zajas and the Administrative Court were obliged to accept and appraise the evidence offered which refuted the only argument for the rejection of the candidacy of the aforementioned, given that the guilt for submitting the incorrect data from the penal records lied with the state authorities that kept the records, and in no case may it be a guilt for which the consequences should be suffered by the citizen, who quite legitimately expected that the state kept correct penal records for its citizens, which are of relevance in the exercise of their rights, and who did not expect the data about him in the penal records to be incorrect.

Given the fact that the state, through its bodies, allowed incorrect data from the penal records to be an obstacle for a citizen to exercise his passive electoral right, that is to take part in the elections for mayor of the Zajas Municipality as a candidate who met the legal conditions for nomination for this function, the Court found that the dismissal of the candidacy for mayor of the person Xhavid Rushani as a result of the such incorrect data from the penal records essentially means a violation of the right to political association and activity of this person, behind whose nomination was an organised group of citizens pursuant to the existing regulation.

7. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

8. The Court took the present decision with a majority vote in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, Dr Gzime Starova, and Dr Zoran Sulejmanov.

U.no.84/2009
10 February 2010
Skopje

Dr Trendafil Ivanovski
PRESIDENT
of the Constitutional Court of the Republic of Macedonia

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