Decision U.no.93/2014

U.no.93/2014

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 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 11 February 2015 the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 108 paragraph 2 in the part: “and checks if there is a mark from a visible ink on the nail and thumb of the right hand”,

– Article 108 paragraph 6, in the part: “and the thumb of the rights hand, that is, the thumb of the left hand in case he does not have a thumb on the right hand, is marked with a visible ink, thereby seeing to the visible ink cover the nail of the thumb as well. If the voter does not have a thumb on both hands the right index finger, that is, the left index finger if he does not have a right index finger, is marked with a visible ink” and

– Article 108-a paragraph 9, in the part: “and the thumb on his right hand, that is, the thumb of his left hand if he does not have a thumb on his right hand, is marked with a visible ink, thereby seeing to the visible ink cover the thumb nail. If the voter does not have a thumb on both hands the right index finger, that is, the left index finger if he does not have a right index finger, is marked with a visible ink” of the Electoral Code (“Official Gazette of the Republic of Macedonia”, nos.40/2006, 136/2008, 44/2011, 51/2011, 142/2012, 31/2013, 34/2013 and 14/2014) SHALL BE REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. With its Resolution U.br.93/2014 dated 10 December 2014 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality of the parts of the articles from the Electoral Code specifically noted in item 1 of the present Decision. The procedure was initiated as there was a reasonable question raised before the Court with regard to the accordance of the contested articles from the Electoral Code with the Constitution of the Republic of Macedonia.

4. At its session the Court found that under Article 108 of the Electoral Code:

(1) The voters vote one by one.
(2) When the voter approaches to vote, the Electoral Board checks if the voter is at the appropriate polling station and checks for visible ink mark on the nail and the thumb of his right hand.
(3) When the voter approaches to vote, the Electoral Board checks his personal identity.
(4) The voter proves his personal identity with an identity card or passport.
(5) The Electoral Board, upon determining the identity of the voter, circles his ordinal number in the excerpt of the Voters’ List and the voter attaches his signature, and if he is illiterate he attaches his fingerprint of the right index finger. If the voter has no right index finger, he will attach a fingerprint of his left index finger, and if he does not have a left index finger no fingerprint is attached.
(6) Upon the identification, the voter receives a ballot and the thumb of his right hand, that is, the thumb of his left hand if he does not have a right thumb is marked with a visible ink, thereby seeing to that the visible ink also cover the nail of the thumb. If the voter does not have a thumb on both hands then the right index finger, that is, his left index finger is he doesnot have a right one is marked with visible ink.

Under Article 108-a paragraph 9 of the same Code, upon the identification the voter receives a ballot and the thumb of his right hand, that is, the thumb of his left hand if he does not have a right thumb, shall be marked with visible ink, seeing to that the visible ink also cover the nail on the thumb. If the voter does not have a thumb on both hands, then his right finger index, that is, his left index finger if he does not have an index finger on his right hand, is marked with visible ink.

5. Under Article 9 of the Constitution of RM citizens of the Republic of Macedonia are equal in their freedoms and rights, regardless of sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status. All citizens are equal before the Constitution and law.

Pursuant to Article 11 paragraphs 1 and 2 of the Constitution the human right to physical and moral integrity is irrevocable. Any form of torture, or inhuman or degrading conduct or punishment is prohibited.

Article 16 paragraph 1 of the Constitution guarantees the freedom of personal conviction, conscience, thought and public expression of thought.

Under Article 22 paragraph 2 of the Constitution, the right to vote is equal, universal and direct, and is exercised at free elections by secret ballot.

Pursuant to Article 25 of the Constitution, each citizen is guaranteed the respect and protection of the privacy of his/her personal and family life and his/her dignity and repute.

The Electoral Code regulates the manner, conditions and procedure for election of the President of the Republic of Macedonia, election of representatives in the Assembly of the Republic of Macedonia, members of the municipal councils and the Council of the City of Skopje, election of mayors of municipalities and Mayor of the City of Skopje, the manner and procedure of registering the right to vote, running the polling list, determining the boundaries of constituencies and determining, changing and publishing the polling stations, and the conditions for functioning of the polling stations (Article 1).

Article 2, line 1 of the Electoral Code clearly stipulates the meaning of the term right to vote, under which each citizen of the Republic of Macedonia with 18 years of age and legal capacity has a right to vote.

Under Article 3 of the Electoral Code, the President of the Republic, Representatives, members of councils and mayors of the municipalities are elected in general, direct and free elections by secret ballot (paragraph 1). Nobody may hold the voter to accountability for the voting, nor ask him to say who he has voted for or why he has not voted (paragraph 2).

Contested Article 108 of the Code is set out in Chapter VII entitled: “Election Administration” and in item 10 entitled: “Voting” and the subitem: “Determination of the identity of the voter.”

Under Article 108 of the Electoral Code:

(1) The voters vote one by one.
(2) When the voter approaches to vote, the Electoral Board checks if the voter is at the appropriate polling station and checks for visible ink mark on the nail and the thumb of his right hand.
(3) When the voter approaches to vote, the Electoral Board checks his personal identity.
(4) The voter proves his personal identity with an identity card or passport.
(5) The Electoral Board, upon determining the identity of the voter, circles his ordinal number in the excerpt of the Voters’ List and the voter attaches his signature, and if he is illiterate he attaches his fingerprint of the right index finger. If the voter has no right index finger, he will attach a fingerprint of his left index finger, and if he does not have a left index finger no fingerprint is attached.
(6) Upon the identification, the voter receives a ballot and the thumb of his right hand, that is, the thumb of his left hand if he does not have a right thumb is marked with a visible ink, thereby seeing to that the visible ink also cover the nail of the thumb. If the voter does not have a thumb on both hands then the right index finger, that is, his left index finger is he doesnot have a right one is marked with visible ink.

Under Article 108-a paragraph 9 of the same Code, upon the identification the voter receives a ballot and the thumb of his right hand, that is, the thumb of his left hand if he doesnot have a right thumb, shall be marked with visible ink, seeing to that the visible ink also cover the nail on the thumb. If the voter does not have a thumb on both hands, then his right finger index, that is, his left index finger if he does not have an index finger on his right hand, is marked with visible ink.

According to the Court, from the analysis of the constitutional and legal provisions it clearly and unambiguously arises that the allegations in the initiative have merits for the following reasons:

The citizen is the supporting pillar of the state and his role and function, under the Constitution, is to create specific political institutions and state authorities which will respect the fundamental values ??of the constitutional order. Hence, within the electoral system, the most important fundamental value is certainly political pluralism and free, direct and democratic elections. The power to create and change, the citizen “draws” right through the constitutionally guaranteed right to vote understood in its equality, generality, directness and secrecy, as in other democratic countries. Moreover, the secret ballot means a form of voting that provides full anonymity. This form of voting cannot be controlled by state bodies, political parties or other entities.

According to the Court, the contested parts of the legal provision of Article 108, paragraphs 2 and 6, and the disputed part of Article 108-a paragraph 9 of the Electoral Code do not provide confidentiality, that is, complete anonymity of the voter. This for a reason that the visible marking of voters, which is stipulated in the contested parts of the legal provisions, allows every citizen in the Republic of Macedonia to be able to have an insight whether his fellow citizen has exercised his right to vote or not, which violates the principle of secrecy of voting.

Namely, the right of the voter to vote, and the right not to vote, is actually part of the secrecy of voting rights, and confidentiality in the election process, but also an integral part of freedom of belief, conscience, thought and public expression of thought of citizens guaranteed in Article 16 paragraph 1 of the Constitution of the Republic of Macedonia. The contested provisions, according to the Court, are not in accordance with Article 16 of the Constitution, for a reason that the right of citizens to vote and the right of citizens not to vote is in close connection with the freedom of belief and thought, as well as free expression of thught, a right which is completely violated and limited with the contested article of the Code.

The visible marking of the thumb of the citizen – voter who has exercised his right to vote, as well as the unmarked thumb of the citizen – voter who has not voted, that is, has not exercised his right to vote, at the same time, according to the Court, means a direct violation of the principle of secrecy of the right to vote as an internationally recognised category – Article 21 paragraph 3 of the Universal Declaration of Human Rights and Article 25-b of the International Covenant on Civil and Political Rights, which are part of the internal legal order given that they are ratified (Article 118 of the Constitution). According to the acts noted, general principles of the European constitutional heritage, which forms the basis of any genuinely democratic society, determine the right to vote in terms of the possibility of casting a vote in general, direct, equal, free and secret elections which are held at regular intervals. The presumption of a democratic state must be in favor of inclusion, because the universal right to vote in such society becomes a “basic principle”.

Furthermore, according to the Court, the points in the initiative have merits and suggest that the visible marking of the nail of the thumb in the manner provided for in the contested parts of the articles of the Electoral Code which are subject to constitutional court analysis in this concrete case violates Article 22 paragraph 2 of the Constitution, more specifically the passive dimension of the secrecy of the voting right. This for a reason that the visible marking of the thumb of the voter violates the secrecy of the right to a decision, political conviction of thought of every citizen – voter to participate or not to participate, that is, to abstain in elections, a right which is guaranteed in the Constitution of the Republic of Macedonia and the Electoral Code. This even more since the freedom of choice should be protection against various types and forms of pressures with which the voter may be confronted with the visible fact that he has voted, that is, has not voted. Visible marking of thumbs of citizens – voters who have cast their vote, but also the unmarked thumbs of citizens – voters who have not cast their vote and at their own discretion have not exercised the right to vote, enables every citizen to know if anyone else has exercised his right to vote or not, which, according to the Court, is not in accordance with the Constitution of the Republic of Macedonia and its basic principles.

Also, according to the finding of the Court, the visible marking of the thumb of the citizen – voter also directly violates the dignity and reputation of the voter and his/her privacy, as a result of which these provisions of the Electoral Code are not in accordance with Article 25 of the Constitution of the Republic of Macedonia. This for a reason that starting from the standpoint that the freedoms and rights of the individual and citizen are exercised exclusively as human values, that is, as civil liberties which are confirmed and guaranteed by the Constitution, the essential substance of civil liberties and rights is the respect for the physical and legal integrity of the personality and the individual and providing his/her honor and dignity.

Due to the said arguments and noted stance which is based on the constitutional norms and international acts, even though the initiative does not cover the part of paragraph 2 of Article 108 of the Electoral Code, which regulates the identical issue, the Court on its own initiative has raised the issue on the conformity of the constitutionality and found that Article 108, paragraph 2, in part: “and checks for visible ink mark on the nail and thumb of his right hand,” and

Article 108-a paragraph 9, in part, of the said Code, which regulate the same matters as the part of the contested provision, decided that they do not comply with the provisions of the Constitution to which the applicant refers.

When building a legal opinion and taking a final position on the legal issue raised with the aplication, the Court also took into consideration the international acts indicated in the application – the International Covenant on Civil and Political
Rights and Article 3 of the First Protocol to the European Convention on Human Rights, where it is stipulated:

– Article 25 of the International Covenant on Civil and Political Rights: “Every citizen has the right and duty ….. without unreasonable restrictions, to take part in the conduct of public affairs in the system in direct way or through freely chosen representatives, in periodic elections to elect and be elected in accordance with the principles of generality, equality, directness and secrecy by guaranteeing the freely expressed will of the voters and, in accordance with the principle of equality, to have free access to public services in his country”.

Article 3 of the First Protocol to the European Convention on Human Rights provides that free elections should be held in reasonable time periods by respecting the principle of secret ballot, under conditions which will ensure the free expression of the will and opinion of the voters.

The content of the cited provisions of the aforementioned international acts clearly shows that they inter alia indicate the principle of confidentiality as a basic principle, highlighting the existence of conditions that would guarantee the freely expressed will and opinion of voters, which, according to the Court, means providing “favorable terrain” for free expression of the will without thereby the “external factor” to have an impact on the citizen – voter.

Based on the aforementioned constitutional-court analysis, and the wholeness of the presented arguments, the Court found that Article 108 paragraph 2 in the part: “and check for visible ink mark on the nail and thumb of his right hand”, article 108 paragraph 6 in the part: “and the thumb of his right hand, that is, the thumb of his left hand if he does not have a right thumb is marked with visible ink, thereby seeing to the visible ink also cover the nail of the thumb. If the voter does not have a thumb on both hands the right index finger, that is, the left index finger if he does not have a right index finger, is marked with a visible ink” and Article 108-a paragraph 9 in the part: “and the thumb of his right hand, that is, the thumb of his left hand if he does not have a thumb on his right hand, is marked with visible ink, thereby seeing to the visible ink cover the thumb nail. If the voter does not have a thumb on both hands the right index finger, that is, the left index finger if he does not have a right index finger, is marked with visible ink”, all from the Electoral Code are not in accordance with the provisions of the Constitution, that is, with Article 9, Article 11 paragraphs 1 and 2, Article 16 paragraph 1, Article 22 paragraph 2 and article 25 of the Constitution of the Republic of Macedonia.

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

7. The Court took the present decision in the following composition: Mrs Elena Gosheva, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski.

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