.



Юридическая консультация онлайн

, . -


:

» 
» 
» 
» X-files
» 
» 
» 
» 
» 
» 
» English

:

Рейтинг@Mail.ru




21.10.2020, . 09:16

Proceedings and Decisions 1

Yu. Vedeneev, Doctor of legal sciences
V. Lysenko, Candidate of legal sciences

1. Figures and Reactions

During the week bridging October and November 1995, the Russian society was in a state of slight agitation. Yabloko public association, the one favored to win the upcoming election, was denied registration of a federal list of candidates for deputies of the State Duma of the Federal Assembly of the Russian Federation of the second convocation. Villainous officials from the Central Election Commission of the RF cynically and cold-bloodedly violated the will of 930,000 of their compatriots who signed the signature lists of the favorite association, which was to represent their interests in the lower chamber of the Parliament. However, pretty soon good tidings were heard from behind the walls of the Supreme Court of the Russian Federation. A democratic David, represented by Mr. Yavlinsky, felled the bureaucratic Goliath represented by Mr. Ryabov. Only one little thing has to be determined - whether law and justice also prevailed. The following article addresses this historic event and Russia's perpetual political problem.

The first and greatest reaction to the denial of registration which determined the course of the development of forthcoming events came four hours after the adoption of the decision during the Itogy (Results) television program on 29 September 1995. E. Kiselyov, the host of the program and G. Yavlinsky, the leader of the electoral association, immediately tried to set the initial tone of the public attitude and an understanding of the current situation. To a certain extent, they managed to achieve this. The actions of the Federal Department for Elections were labeled as a scandalous decision although at that moment, none of the participants of the spontaneous discussion had the necessary materials for an unambiguous assessment of such an extraordinary event.

Intensive exploitation by the mass media of the accepted version during the ensuing days, which resembled more of a political hysteria rather than an attempt to get to the bottom of the legal grounds of the adopted decision, bore fruit. A commonplace election dispute evolved into a political process, which became increasingly clearer that it was aimed at bigger political target, judging by the melody of the next threat to democratic gains from the bureaucratic department for elections, which was played in unison with it.

The object of public and political criticism was clearly and unambiguously defined. A non-constitutional department with rather dubious powers in the sphere of organization and conduct of federal parliamentary and presidential elections began to filter and sort out participants in the elections instead of playing the role of a simple registrar; i.e., it exercised planned political censorship.

Where do its founders - the president. State Duma and Federation Council -look? The illegitimate child of the political misalliance left unattended and without the guardianship of the democratic public and the wise all-seeing branches of power, not only violates the smoothness of the election campaign, but also by its senseless and irresponsible conduct already casts doubts on the results of the next parliamentary elections. By publicly reproaching the Central Election Commission, one of the representatives of one of the branches of power regretted that he could not correct this misunderstanding; otherwise, he would order that all of them be registered. Regrets about the unexpected ill health of the president who would of course hold the delinquent bureaucrats liable and cheerful exclamations that despite everything, the president brought this previously unknown department to responsibility and even demanded all election documents, resounded throughout the political arena and wasted political time which was so badly needed to discover the actual grounds for the Commission's decision. However, as it became obvious later in the Supreme Court of the RF, this honorable department was not terribly interested in the legal grounds for the denial. But this will be dealt with later.

Political rhetoric gradually evolved into political accusations. Can the department whose incompetence in understanding the historic role and importance of Yabloko electoral association became quite clear be trusted? Are there any guarantees that officials of this department will not falsify the results of the upcoming elections having already neglected to inform the public about the methods of falsifying the 1993 election results? The actual and legal subject of the conflict was not the dispute between the federal department for elections and one of the numerous participants in elections concerning the compliance with the law at the stage of nomination and registration of a federal list rather than the discussion concerning the place and the role of this state institution in the election mechanism. Moreover, the plan for discrediting the federal department for elections, its restructuring due to incompetence and imperfection of the election legislation itself and restarting of the Commission was to be carried out at the judicial session.

The federal department whose competence includes issues related to organization of elections at certain stages of the process had to answer to the electoral association (which represented the Russian and international community) as to the grounds on which it impeded the exercise of the passive and active electoral right of citizens who link their political fate and that of the country with this association. Obviously, the issue mainly concerned not those citizens who by the decision of the association had been illegally written off the federal list, but rather about those who were mercifully left in the association by its leadership.

Despite the surface nature of political statements, they lacked a variety of topics, assumptions and predictions and in essence boiled down to a single point. How did the Central Election Commission dare to refuse one of the most respected public associations, a leader of which is also planning to run for president? How can one stop his head from spinning with an overwhelming number of interpretations and conjectures, fantasies and revelations? The familiar topic of the conspiracy of those in power who were concerned with the emergence of Yavlinsky was swiftly introduced into politics. For a moment, the interests of a certain part of the political spectrum in destabilizing the situation in the country were united over the point of catching political fish in the muddy waters of the Russian election process.

Organized political bacchanalia was acquiring the familiar face of intentional political self-destructiveness. Based on the concept of the «scandalous decision», although we should first and foremost speak about the question of its legality, visible and invisible participants in the election dispute, which is quite common with elections, entered the hall of sessions of the Supreme Court of the Russian Federation where a legal drama took place in a direct and metaphorical meaning of this concept and phenomenon. We will not go into all the details of the judicial proceedings. Prior to giving our own estimate of options considered and the results, let's discuss definitions of the electoral right and process, which are very important for the understanding of the legal aspect of the conflict.

The understanding of the legal sense of current events is related to answers to a number of quite difficult questions, whether this crisis was initiated by illegal actions of the Central Election Commission of the Russian Federation itself or it was triggered by the illegal actions of participants in the election process; whether there was an intentional violation of the election legislation or too loose an interpretation of existing legal norms both on the part of the Commission and on the part of electoral associations and blocs forms the basis for the conflict or maybe the imperfection of the election law itself. Countless questions may be asked concerning one and the same theme - who is right and who is guilty?

In order to give the right answer, it is necessary to first pay attention to the technology of the election process, and in particular, to the point of contact between participants in the election process and the federal department for elections. The Central Election Commission first certifies lists of candidates for deputies and then accepts documents submitted by electoral blocs and associations (signature lists, statements of accepting and agreeing to nominations and information on candidates), and only after verification of the number of signatures on signature lists, shall register federal lists. In their turn, the electoral blocs independently form their federal lists, collect signatures of citizens supporting them and timely submit documents to the Commission necessary for registration. The extremely simple scheme for election actions turned out to be quite complicated in practice for the Central Election Commission itself as well as electoral blocs and associations.

A political melodrama involved two election procedures - timely submission of documents to the Commission and registration of federal lists. Everything seemed to be elementary from the point of view of election technology: number of signatures on signatures should be counted and federal lists of candidates for deputies should be registered. However, legal qualification of election actions in terms of their compliance with the requirements of the federal law «On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation» encountered not only insufficiently clear wording in the text of the election law itself, but its application by participants in the election process in practice as well. That is why it seems to be appropriate to focus on a number of basic definitions of the electoral right and legislation, which guide constitutional elections in the Russian Federation.

2. Electoral Right, Election Process and Election Disputes

The constitutional right of citizens of the Russian Federation to elect and be elected to bodies of state power is the fundamental political right, which is outlined and ensured by the legislation, which is quite complicated in terms of its content and structure. Basic principles of participation in elections are formulated in the federal law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation», according to which, elections are conducted on the basis of a general, equal and direct electoral right; participation in elections shall be voluntary and no one is allowed to coerce a citizen into participating or abstaining from voting as well as to infringe upon his free will. This is a sort of political and legal matrix of the democratic election process whose structural unit is a citizen. All the other institutions and participants play an auxiliary role in connection with the execution of the political and constitutional right by citizens to manage the affairs of their own state.

Here it is important to understand one simple thing. Elections in the Russian Federation mean actions not only by citizens, but also by electoral associations, election commissions and bodies of state power within the entire spectrum of the election process - compilation of voter lists, nomination and registration of candidates, carrying out elections campaigns, voting and summarizing its results and other election actions in accordance with federal laws. Actions which have been taken in violation of the norms of the electoral right may not formally and legally be qualified as election actions, i.e., legal facts, events and conditions which characterize the process of rotation and transfer of state power as a legitimate and legal process. Hence, that is why norms, rules and procedures, that in aggregate ensure the lawful rotation of persons holding state positions and fulfilling functions, roles and wielding powers draw such close attention. Hence, there is such a polarity of opinions, positions and attitudes towards possible and already applied types of electoral systems and models of representations of public interests.

The electoral right is the most politicized part of the law of modern democracies. It summarizes a political consensus among different social groups in respect to certain aspects of their organization and reproduction achieved at a certain stage of the development and functioning of state institutions. It reflects a quite flexible and contradictory structure of public expectations and preferences, interests and conflicts. However, at the same time, it accumulates experience of lawful resolution of public conflicts, experience of legal organization of public political power and its transfer based on the results of regularly held elections.

Legal, organizational, informational as well as judicial guarantees, which in aggregate form the legal infrastructure of the election process comprise the inseparable part of the mechanism of the execution of electoral rights of citizens. As for the parliamentary elections, these guarantees are outlined in the special federal law «On Election of Deputies to the State Duma of the Federal Assembly of the Russian Federation» dated 21 June 1994. If there are election disputes between different participants in the election process, which are possible during the election campaign, then both the judicial and administrative procedures are used for their resolution. Election disputes arising in connection and resulting from a violation of the norms, rules and procedures for the election process are a quite natural and routine element of the law enforcement practice. Naturally, election disputes are a part of the election process, which in itself is not desirable for any participants. However, at the same time, the election right itself, its transformation into capable, legally justified system of rules and procedures evolving together with the political election practice is enriched through election disputes.

This aspect has a significant importance for the understanding of the legal sense and consequences of election disputes between the Central Election Commission of the Russian Federation and a number of electoral associations. Although public attention was mainly focused on the election dispute between the federal department for elections and Yabloko electoral association in connection with the initial refusal to register the federal list of candidates (29 October) and the subsequent registration (6 November) on the basis of the ruling of the Supreme Court of the Russian Federation, in our opinion, certain gaps both in the federal law and existing «lawful understanding» of the legal nature of different election actions and the major component of the organization of political representation -federal list of candidates from electoral associations; relations between election commissions and public associations; and the role of judicial bodies in the election process, etc. were revealed in election disputes on the whole, their grounds and motives, positions of parties in interpreting the effective election legislation and its judicial interpretation in each particular public proceeding.

3. Judicial Proceedings as Political Discussion and Position

Relations between the federal department for elections and electoral associations (blocs) at the stage of registration of federal lists of candidates as one of the legal forms of execution of the passive electoral right of citizens through those collective subjects of the election process should be addressed in the general context of problems revealed and raised in the course of election disputes. Does the Commission at the stage, the legal passing of which grants the candidates (listed candidates) the official status of candidates for deputies with the relevant rights, obligations, responsibilities and guarantees, act as a registration body only or is it empowered by the legislation to make legal decisions within the limits of its powers. The question is of principle importance because its correct legal qualification removes many misunderstandings arising in the course of the election campaign. Even more so because it has been raised in the Supreme Court of the Russian Federation.

Members of the Central Election Commission and employees of its apparatus participated in the judicial proceedings concerning the complaint filed by Yabloko electoral association to their sincere surprise found out from representatives of the plaintiff that they are not the member but only the technical means of the implementation of the political will of citizens concerning the participation in the management of the affairs of a democratic law abiding state with a republican form of administration in accordance with the definition of Article 1 of the Constitution of the Russian Federation. In other words, they were the means for the periodic (once every four years) conception of basic state institutions - the president and the lower chamber of the parliament. The way the question concerning the role and place of the federal department for organizing and holding elections to bodies of state power in such a democratic version was put causes a certain amount of perplexity among the members and cheerful adulation among the audience filling the court room. The mentioning in the course of the evolving discussion of the lawful powers of the Central Election Commission in the sphere of organizing and holding elections caused irritation among the representatives of the plaintiff. A legal statement based on federal laws concerning the powers of the Central Election Commission to exercise control over the legality of actions in the course of the election campaign of all its participants resulted in a tempest of democratic indignation. And only a qualified intrusion into the discussion of S. Avakyan, doctor of legal sciences who confirmed that the Central Election Commission had no right but only and obligation to accept everything submitted and register everyone, placated agitated citizens.

During the process of a highly scientific discussion of the active and passive electoral right, which mainly involved the representatives of the plaintiff, an important discovery from the legal point of view was made. Ms. E. Mizulina proved in the course of judicial proceedings that 206 citizens of the Russian Federation acquired the passive electoral right only due to their inclusion in the federal lists of Yabloko electoral association. The following was revealed during the discussion of this interesting thesis. It turned out that the practical execution of the passive electoral right of citizens in the election process might depend on the correct understanding of the technology of its execution by the leadership of the electoral association. In our variant, it might, by its decision, remove any citizen from the certified federal list on 17 October 1995 despite the fact that they had been included on the said list by the decision of the convention and that they timely submitted (i.e., prior to the submission of signature lists to the Central Election Commission on 19 October 1995) applications concerning acceptance and agreeing to the nomination to run for the lower chamber of the parliament from the said association.

The implication of the new concept was realized by the representative of the defendant during the course of the judicial proceedings. Whereas at the moment of submission of documents to the federal department for elections, citizens of the Russian Federation lacked the passive electoral right and consequently there was no violation of their electoral rights on the part of Yabloko electoral association. And it meant that the Central Election Commission of the Russian Federation had no grounds to deny registration of the federal list of candidates for deputies from the said association based on motives of the violation of the procedure for nominating the federal list of candidates, bearing in mind that applications concerning acceptance and agreeing to the nomination on the part of a number of persons previously included on the federal list certified by the Commission were not transferred by the association, though it had it at that historic moment. Hence, there was a logical demand by the plaintiff - the decision of the Central Election Commission of the Russian Federation to deny registration is illegal in its essence because it was impossible to violate, that which did not exist. The Supreme Court attentively perceived this outstanding construction in terms of its legal groundlessness, and on the basis of it, made a similar outstanding decision concerning the revocation of the decision.

And only because the Central Election Commission illegally verified, from the point of view of the plaintiff, the observance by Yabloko electoral association of legal conditions for nominating its own federal list (sic), the citizens remaining on the list, though at that time they only numbered 187, were deprived of the possibility to exercise the passive electoral right. How can it be summarized that the federal department for elections, as it is determined, is allowed only to formally register nominees for deputy mandates and the rest is within the sphere of activities of politicians who face the people and correspondingly turn their back on certain bodies responsible for the technical aspects of the election process - acceptance of signature lists and automatic registration of what is left over from the federal lists by decisions of a certain anonymous bureaus, supreme (!) councils and other outstanding political and bureaucratic units in terms of the names they gave themselves.

Nobody was particularly interested in the legal aspect of the conflict. That is: a single binding federal list, especially when certified by the Commission, is first and foremost a legal document. It is not the political property of electoral associations and blocs, which they can dispose of at their own discretion. Naturally, such an interpretation would have been unacceptable for the representatives of the plaintiff. Here, another concept that the Central Election Commission was only a technical means to seize power would have been more convenient. And that would have satisfied all those seeking deputy mandates by excluding any institutional and legal control over the methods of seizing power. And if the means do not satisfy some popular comrades and gentlemen, it can be simply replaced with another means, which was ceremoniously declared at the judicial session.

Thus, society was offered the following version. The federal department for elections violated the effective legislation, was not only incompetent, but was also prejudiced against certain electoral associations and blocs. However, the Supreme Court reestablished justice and the right infringed upon by bureaucrats. Let's review the situation and its version from the point of view of the effective election legislation, which determines rights, obligations and responsibilities of all participants in the election process.

4. Powers, Legal Facts and Court Ruling

Article 3 of the federal law on guarantees states that a citizen of the Russian Federation voluntarily participates in elections; no one is allowed to coerce him to participate or abstain from voting as well as to influence his free will. At the same time, the Central Election Commission, together with election commissions of the subjects of the Russian Federation is empowered to exercise control over the observance of the electoral rights of citizens (Article 12). In addition, Article 23 of the federal law on elections states that the Commission exercises control over the observance of law when preparing and holding elections, ensures uniform application of the federal law on elections of deputies to the State Duma of the Federal Assembly including when registering federal lists of candidates from electoral associations (blocs) within the sphere of its competence established by federal laws.

In accordance with part 3 of Article 42 of the federal law on elections, the Central Election Commission of the Russian Federation, within 10 days from the date of receipt of the document, shall verify the compliance of the procedure for the nomination of the federal list of candidates with the requirements of the federal law on election and make a decision concerning registration of the federal list of candidates or a justified decision concerning denial of registration. For the purposes of establishing a legal technological chain of effective «feedback» of election commissions and electoral associations, Article 11 of the law on guarantees states that public associations, as well as their officials, are obliged to assist election commissions in the execution of their powers, and in particular, grant necessary information and materials and provide replies to requests from election commissions within time limits established by federal laws. Thus, the powers of an election commission in respect to the resolution of this issue are unambiguously determined by the legislation on elections.

Under these conditions, the point which was repeatedly put forward during judicial proceedings in the Supreme Court of the Russian Federation on November 3-4, 1995 by Yabloko electoral association that during the consideration by the Central Election Commission of the Russian Federation of the issue concerning the registration of the federal list of its candidates, Yabloko allegedly demonstrated good political will in response to the proposal from the Commission to submit for its use all necessary information and materials, in particular, all applications from the candidates concerning their withdrawal from the list or agreement with their nomination from Yabloko, but according to Article 11 of the federal law, was null and void. This is a legal obligation of an electoral association and not its right nor a demonstration of «good will» and «a concession to» the Commission. Such a legal model of relations between the Commission and an electoral association is one of the organizational and legal guarantees of the electoral rights of citizens and of those who voluntarily agree to be nominated against arbitrary (i.e., proprietary) treatment of them on the part of the electoral association (bloc).

According to the spirit and the letter of the election legislation, a candidate is not a speechless political commodity of an electoral association, a «spineless» person who can be manipulated or managed if of course he himself, due to different considerations, including in the name of the preservation of an image of an electoral association, allows the association to treat him as the latter «democratically» decides at the stage of collection of signatures of voters in support of a party list and submission of documents for registration with the election commission.

It is well-known that the Central Election Commission of the Russian Federation considered the federal list of candidates from Yabloko over two days (28 and 29 October) with due regard to the legislative requirement that 29 October was the last day to make a decision concerning the issue under consideration (lists and documents were submitted by Yabloko on 29 October and during the next 10 days the issue concerning the registration or refusal to register must have been considered and resolved). When considering the issue on 28 October, the Commission established that initially Yabloko had not submitted all its documents, in particular: both written applications of 13 candidates concerning their voluntary withdrawal from the federal list and 6 applications that they agreed to be nominated as part of the Yabloko list (those applications were submitted on 29 October).

Based on the results of the consideration of the issue, the Central Election Commission of the Russian Federation approved a resolution concerning the denial of registration of the federal list of candidates from Yabloko electoral association due to the non-compliance of the procedure for nominating candidates by an electoral association with the federal election legislation, in particular, with provisions of part 4 of Article 37 of the federal law on elections (because by 19 October the association had not submitted names of candidates for registration who timely submitted applications that they agreed to be nominated).

After the denial of registration of the federal list, it was legally established during the judicial proceeding, including in the procedural form of obtaining testimonies of witnesses summoned by the court at the initiative of Yabloko, that at least three candidates (Kaznin, Yakovlev, Grishaenko) submitted their applications in advance to Yabloko election headquarters (the first was submitted on 3 September, the last on 16 October). However, despite this fact, the Bureau of the Central Council of Yabloko public and political association, as per its decision of 17 October, treated them as having been withdrawn on the grounds that they had not submitted the necessary documents for registration as part of the federal list. Thus we see the arbitrary treatment of its candidates on the list by Yabloko public and political association, i.e., violation of the federal election legislation which states that no one is entitled to coerce a citizen into abstaining from elections as well as influence his free will.

In this connection it is necessary to note that Article 34 of the federal law on guarantees establishes that persons (in this particular case, first and foremost, authorized representatives from Yabloko) who in any way (in this particular case, by not submitting all applications concerning the acceptance of the nomination which the association had) infringing upon the free execution by a citizen of the Russian Federation of his right to elect and be elected, must be liable in accordance with federal laws.

The statement made by the representatives from Yabloko electoral association that they had collected 930,000 and not 200,000 signatures of voters as required by the law in support of their federal list of candidates which allegedly confirmed its mass support on the part of voters, and that due to this fact, the denial of registration might be regard as negligent treatment of voter attitudes if not more, might be regarded as a misunderstanding of the essence and importance of the stage of collection of voter signatures in support of a party list from the legal point of view. Pursuing the goal of getting more voter signatures as an attainment of the Holy Grail, the association missed more important legal work, in particular: work with 206 listed candidates concerning the preparation by them of required documents for the registration of the entire list (in the end, there were 187 remaining).

Of course the so-called withdrawal of 19 candidates from the list is probably not a major quantitative loss for Yabloko. Other associations and blocs lost more, some of them even up to two-thirds of their candidates from the initial list. However, from a legal point of view, what matters is not how many candidates voluntarily withdraw, rather, how they are withdrawn from the certified federal list.

In the course of the judicial proceedings, when questioning witnesses from Yabloko electoral association, one of them, Kaznin (he had been a potential candidate prior to 17 October) eventually gave a positive response to persistent questions from the judge and the prosecutor as to whether he agreed despite his so-called withdrawal/dismissal from the list to still be a nominee from Yabloko, at the same time he noted that he always had the intention stated in the application to agree to be nominated at least from the date of his nomination at the Yabloko convention. However, on the next day he sent a telegram to the Supreme Court (read by a representative from Yabloko) that he confirmed his initial (it was unclear and misleading as to which one) application concerning his withdrawal from the Yabloko list.

It should be noted that the electoral association did not miss the opportunity to get all signature lists even from those who subsequently withdrew from the candidate list (19 people); however, in its decision, the Bureau of the Yabloko Central Council helplessly confirmed the withdrawal of six candidates as not having submitted the required documents for registration with the Central Election Commission of the Russian Federation. There was a strange imbalance (symbiosis) of people's support of candidates and organizational deficiency of headquarters bodies and authorized representatives from Yabloko electoral association.

Furthermore, based on the law on guarantees (Article 2) in so far as it states that the list of candidates is a uniform list of candidates nominated by an electoral association (electoral bloc) for elections to the legislative (representative) body of state power, the federal law of elections of deputies of the State Duma of the Federal Assembly of the Russian Federation of the second convocation charges the Central Election Commission of the Russian Federation with an obligation to consider the list as a binding document and refuse to register it even if an electoral association (bloc) has violated any part thereof. This means that all candidates in the list and the electoral association as a whole shall bear joint and several legal responsibility (if they commit an offense) in the form of denial of registration if the Central Election Commission of the Russian Federation discovers that the procedure for nominating the federal list of candidates does not meet the requirements of the election legislation.

In this particular case, the concealment of the above applications which later turned into late and forced submission by the Central Election Commission of the Russian Federation on the part of authorized representatives of Yabloko electoral association (i.e., not by the 19 October when documents were submitted, but at the request of the Central Election Commission of the Russian Federation on 29 October, which was the last date set by the law for considering the issue concerning the registration of an association list) having to do with the agreement of six candidates to be nominees was sufficient legal grounds (cause), and to be more precise, the obligation of the Commission to decide to deny registration. Article 20 of the federal law on guarantees states that the cause for denial may only be a failure to meet the requirements of federal laws on elections and this was formulated in the «denying» resolution of the Central Election Commission of the Russian Federation concerning the «Yabloko case» on 29 November 1995. Article 16 of the federal law establishes that decisions and actions (or inaction) of the election commissions and their officials, which violate electoral, rights of citizens, may be appealed in court. Decisions concerning complaints filed during elections shall be made within five days and on the day of voting - immediately. Article 42 of the federal law on elections establishes that the decision of the Central Election Commission to deny registration may be appealed in the Supreme Court of the Russian Federation and the complaint must be considered within three days. Meanwhile, Article 29 of the same law establishes that a decision of the election commission that contradicted federal laws or made in excess of its powers shall be overturned by court.

However, and this is a specific feature of the election legislation, the federal legislation on elections provides the court with an opportunity to make a decision only to overturn decisions of the election commissions and not to make decisions in their stead when considering election disputes. Otherwise, the judicial power would acquire features of another power, which contradicts the nature of justice. In our particular case, Yabloko vs. the Central Election Commission of the Russian Federation, when considering the election dispute, the Supreme Court of the Russian Federation exceeded its powers granted by the election legislation when it made a decision concerning the essence of the issue. In judicial practice related to the consideration of election disputes in the course of this election campaign, the Supreme Court, represented by one of its judges (although different), adopted decisions which differ in their legal consequences in respect to one and the same category of complaints (denial of registration), particular: in several cases it overturned decisions of the Central Election Commission of the Russian Federation and ordered it to register the federal list of candidates within the limits established by the law, and in other cases only overturned the decision and ordered the Commission to reconsider the issue.

To a certain extent, such practice may be justified on one side by insufficient experience in considering election disputes, while on the other side, by the vulnerability of the court and the prosecutor's office to the indirect pressure from public opinion and political authority of a public association.

The absence of such «justifying» reasons may not and must not counterbalance the obligations of these bodies to consider election disputes from the angle of the observance of all requirements of the election legislation. Otherwise, the feeling of injustice on the part of the plaintiff or the defendant will result in an imbalance of the mechanism of ensuring uniform application of the election legislation, including when based on court rulings which have a greater legal importance than routine activities of other bodies in ensuring uniform application of the election legislation and the lawfulness of preparation and holding of elections.

5. Summary

The process of registration of federal lists of candidates revealed a number of gaps in the law on elections of deputies of the State Duma, including those which led to a different interpretation of the law by participants in the election process -the federal department for elections, electoral associations and the Supreme Court of the Russian Federation. In reality, a legal conflict over different interpretations of the law - its application (Central Election Commission of the Russian Federation), enforcement (an electoral association) and judicial (the Supreme Court of the Russian Federation) - took place.

The law (Article 37) has not disclosed the grounds and procedure for withdrawal of candidates from the federal list after its certification by the Commission and collection of signatures of voters in support of the federal list. The law lacks a list of violations by electoral associations and blocs of the procedure for the nomination of federal lists of candidates.

The law should establish legal consequences in the form of denial of registration for nominees for deputies if a number of violations discovered on the signature list by the Commission (on the basis on different formal reasons) exceed specified limits.

The law lacks norms concerning limitation of action as well as norms explaining the computation of time limits and the procedure for taking election actions on the last day for submitting the required documents to election commissions.

Of course, legal gaps and conflicts reveal themselves only in the process of applying the election legislation. Overcoming and removing them is a problem, which can be correctly and lawfully resolved only through consistent political reforms, including in the sphere of political law. The point that legal practice is the criteria for legal truth is of paramount importance. And election disputes are the particular factor, which helps to achieve it.


1 A variant of the article was published in the Independent Newspaper on 24-11-95.




:

: .., .. -
:



, - ...

 >>>



© Copyright , 1999-2020