State Administration and Residence of Citizens with Special Emphasis on the Residential Requirement for Exercising the Right to Vote

Abstract

The aim of the paper is to point out the importance of the right to residence, which, according to a decision of the Constitutional Court of Serbia, is the most important prerequisite and condition for the realization of individual rights, such as the right to vote, the right to social assistance and others, as well as for the fulfillment of individual duties. Therefore, in administrative procedures related to the issue of residence, the factual situation must be accurately and completely determined, and in accordance with the principle of material truth. Nevertheless, in the application of the relevant legislative framework in Serbia, as well as in the countries of the region, certain difficulties are noticeable in this sense in administrative and, in particular, administrative judicial practice related to the difficulty of proving the subjective component (animus vivendi), i.e. the wishes of one person to settle in one place with the intention of living permanently. Also, at the level of legal texts in the countries of the region, there are certain variations, the causes of which will also be discussed in the paper. All the issues related to administrative procedures related to residence will be brought into a very current relationship that concerns the residential condition for exercising the right to vote. In this sense, international standards will be considered, especially the practice of the European Court of Human Rights in Strasbourg, as well as the legislative framework and relevant judicial practice of the countries in the region. In particular, the paper will analyze the observed illogicality in the application of law on the example of the decision of the Montenegrin Constitutional Court to abolish the residence requirement for exercising the right to vote in local elections, while the 2-year residence requirement for voting in parliamentary elections remains in the Constitution of that country, contrary to the recommendation of international bodies. Also, the paper will analyze the question of whether the decision on passivation of residence mandates, i.e. also entails automatic deletion from the voter list in the Republic of Serbia. When considering these questions, the dogmatic and comparative legal method will be used, as well as, to a much lesser extent, the historical legal method.