Krivičnopravna zaštita izbornog prava u Srbiji

Abstract

Serbian law stipulates several types or levels of legal protection of electoral rights. Having raised it to the level of constitutional right, a high level of legal protection has been reached, and it is complementary to the importance of constitutional rights. The first and basic type of legal protection involves remedies during the election procedure, a legal procedure sui generis, to which the rules of administrative procedure are applied accordingly, i.e. subsidiarily. The second level of protection is judicial protection before administrative courts based on appeals by authorized entities participating in the election. The third type of legal protection is the penal protection which takes place in two ways - through criminal law and misdemeanour law protection of electoral rights. Commercial criminal protection of the election rights is not possible. The fourth and last level of protection is the constitutional judicial protection of electoral rights, which is stipulated by the Constitution and only in cases where no other type of legal protection is provided - as an ultima ratio. Crimes against electoral rights are stipulated in the basic criminal legislation, as they occupy the entire chapter in the Criminal Code and there are nine of them. Misdemeanours are stipulated in secondary criminal legislation - the Law on the Election of the Members of Parliament, where there are six of them. Based on the analysis of statistical data, the conclusion is that the criminal protection of electoral rights is not intensive, that it is sporadic and selective, which is reflected in the purpose - general and special prevention. Crimes against suffrage are prosecuted ex officio, so the procedural hibernation of the public prosecutor's office results in the impunity of the perpetrators and the contamination of social life. What would represent de lege ferenda is that, as part of possible changes to the law, a provision should be made that the Public Prosecutor's Office should act with specific urgency in cases to do with elections, because after the end of the elections, the effects of general and special prevention radically decrease.