The complainant (the STAČILO! electoral party) received 4.99 % votes in the elections to the Liberec Regional Assembly held on 20 and 21 September 2024. She was nine votes short of winning 5 % votes and advancing to the run-off. The complainant sought a declaration that the election of the candidates for the council, either all the candidates or the by-elections, or alternatively, that the election itself was invalid. She produced seven affidavits from voters alleging irregularities in the counting of the votes and asked the court to recount the votes in all the constituencies, or at least those in which the complainant had received five or fewer votes.
The Regional Court dismissed the application by the contested order. It concluded that the affidavits submitted did not constitute sufficiently significant evidence to rebut the presumption of correctness of the declared election results. Only one of the affidavits referred to a disregarded vote, the others referred to preferential votes. The Regional Court also referred to the essential role of the precinct election commissions in ensuring the lawful conduct of the voting and the determination of the election results. The complainant did not delegate members to some of the commissions, thus making it difficult for her to convincingly allege a specific violation of the electoral law. Even if all the irregularities were proved according to the affidavits, this would not affect the overall outcome of the elections. The allegations of irregularities in other districts were not substantiated by the complainant. The complainant subsequently appealed to the Constitutional Court.
The First Chamber of the Constitutional Court (Judge-Rapporteur Tomáš Langášek) upheld the constitutional complaint and annulled the contested order of the Regional Court in Ústí nad Labem - Liberec Branch of 22 October 2024, No. 64 A 5/2024-100, because it violated the complainant's right to judicial protection under Article 36(1) of the Charter of Fundamental Rights and Freedoms.
The Constitutional Court disagreed with the Regional Court's conclusions regarding the seven affidavits submitted. One of them referred to a vote not counted for the complainant and six others to a vote not counted as a preferential vote. Those affidavits, the veracity of which was not in doubt, were, according to the Constitutional Court, sufficiently serious evidence to call into question the accuracy of the declared election results in the constituencies concerned. In view of the low number of votes which the applicant fell short of the five per cent threshold for advancing to the run-off, they were also capable of casting indirect doubt on the results at the level of the entire Liberec Region.
The Constitutional Court agreed with the election court that it would not be sufficient to grant the motion if only the voters' allegations in the affidavits were proven. In such a case, the applicant would have one more vote, and the preferential votes would not affect the results of the election in terms of the distribution of seats between the political parties, movements and their coalitions standing for election, or the application of the 5 % electoral clause. However, the affidavits were not intended to prove only the specific irregularities referred to in them, but to prove that the electoral commissions in the districts concerned had not proceeded correctly in the counting of the votes. The actual extent of their misconduct should have been subject to review by the Regional Court. In other words, if a particular commission erred in counting one vote, it may have erred in counting others, and similarly the failure to count a preferential vote may have been due to the fact that the vote for the complainant herself was not counted.
The affidavits could not be the basis for a recount in all districts in the Liberec Region, even in those in which the complainant received five or fewer votes. In relation to the results from those precincts, they have no probative value. However, the affidavits submitted were sufficient grounds for examining the electoral documentation from those polling stations to which they directly related. And, in view of the low number of votes which the complainant had obtained in order to overcome the 5 % electoral threshold, it could not be ruled out in advance that such a review could not lead to a successful electoral complaint.
Generally speaking, there is a presumption of correctness to the results of an election. However, if the petitioner challenges them by means of a credible affidavit from a voter that his (preferential) vote was not counted and makes a plausible claim that the erroneously determined result of the vote in the precinct could have grossly affected the overall outcome of the vote, the election, or the election of a candidate, it is the duty of the election court to ascertain from the election records whether the precinct election board in the precinct in which the voter voted complied with the law in counting the votes.
In the proceedings before the Regional Court, as an electoral court, the complainant presented sufficient evidence to rebut the presumption of correctness of the declared election results. The Regional Court should therefore have examined the electoral documentation from the five districts directly concerned by that evidence. By failing to do so, the Regional Court infringed the applicant's right to judicial protection.
The ruling of the Constitutional Court, Case No. I. ÚS 2931/24, is available at 
here
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