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11. Adjudication of Grievances
Every democratic election system must provide for the adjudication of complaints about the election process. Successful democracies treat this area of election law not just as an unavoidable consequence of elections, nor as a reflection of weaknesses in their systems, but as proof of the strength, vitality, and openness of their politics. Legitimate allegations of violations of law or serious breaches in the election process must be pursued. Courts and election authorities should seek to develop approaches that assure timely, fair, thorough, and consistent resolution of election-related complaints and disputes. The procedures and standards for the process of redress of grievances deserve special consideration and continual refinement as they help keep the entire system honest and responsive.
As with the Duma elections of 1995, high profile cases at the level of the Supreme Court, were a hallmark of the Presidential election process with disputes arising between various participants: voters, candidates, initiative groups, election authorities, government bodies, and the mass media. Those who found themselves in court, either as complainants or defendants, appealed to provisions of the electoral code and applied all possible legal means to protect their rights as stipulated in Federal Laws. That participants actively utilized the mechanisms provided to them for redress of grievances and built their respective cases upon legal provisions is indicative of the increasing credibility of election legislation and the institutions tasked with enforcement and adjudication. While deficiencies remain and will need to be addressed before the next cycle of elections, movement away from an environment in which complaints were not formally lodged for fear of real or perceived retribution or for lack of confidence in the redress process should be accordingly acknowledged.
Overview of Legal and Regulatory Provisions18
The Federal Law «On Basic Guarantees of Electoral Rights of the Citizens of the Russian Federation establishes the fundamental guarantees of electoral rights to be ensure by election authorities and responsibility for the infringement of those rights. According to Article 16 and pursuant to Russia's Constitution, claims may be brought in court against any decision or act (or failure to act) of governmental bodies or other official entities that may infringe upon the electoral rights of citizens. Rulings of the court shall be final as to such claims or appeals. Also, any decision or act (or failure to act) of election commissions or their officials that may infringe upon the electoral rights of citizens can be appealed to a superior election commission or in court; no preliminary appeal to a superior commission is required for recourse to courts. Claims or appeals filed during the pre-election period shall be resolved within five days.
Responsibility for the infringement of the electoral rights of citizens is addressed in Article 34, which stipulates that persons who interfere with electoral rights of Russian citizens through violence, fraud, threats, forgery or other means, who disseminate deliberately falsified information concerning candidates or who other otherwise disgrace the honor and dignity of candidates, who campaign on the eve of election day or who interfere with the work of elections commissions shall be held responsible under federal laws.
The federal law «On Election of President of the Russian Federation» enumerates powers of the permanent election structures, the Central Election Commission of the Russian Federation and the 89 election commissions of the Subject(s) of the Russian Federation. Included within enumeration of scope of powers and responsibilities of the Central Election Commission and subject election commissions during the Presidential elections is the duty to adjudicate complaints about decisions and acts (or failures to act) of subordinate election commissions and to adopt reasonable decisions regarding such complaints. Under Article 18, polling site election commissions are also tasked with the duty of adjudicating complaints of violations of the law and adopting reasonable decisions regarding such complaints.
Consistent with the Basic Guarantees Law, Article 23 stipulates that decisions and acts (or failure to act) of the Central Election Commission may be appealed to the Supreme Court of the Russian Federation. Decisions and acts (or failure to act) of lower election commissions may be appealed to a higher election commission or to a court of law; application to a higher election commission is not a prerequisite to appeal to the court. Decisions about complaints received by a higher commission (or court) shall be adopted within five days, or immediately if received five days or less before the election or on election day. If facts alleged in complaints require additional review, decisions shall be adopted within ten days. A higher election commission is entitled to overrule the decision of a subordinate commission. Courts and prosecutor's offices are to be organized so as to provide timely adjudication of complaints.
Under Article 61, civil and criminal liability shall be placed upon persons who interfere with the electoral rights of voters or the work of electoral commissions through bribery, deceit, violence or threat of same, falsification of documents, deliberate miscalculation of votes or other means, who deliberately spread false information about candidates or interfere with pre-election campaigning, or who interfere with other legal conduct of candidates or their representatives or of domestic or foreign observers.
Changes in the entire Russian legal system in recent years have shaped developments in adjudication of election-related complaints. Most significant has been the effect of Article 123 of the Constitution of the Russian Federation, adopted in December 1993, by which court proceedings shall be conducted on the principles of controversy and legal adversary. Formerly courts were authorized to collect evidence sufficient to warrant a court hearing. Now, the burden of gathering and submitting evidence is upon the contesting parties. Thus, in the context of election complaints, individuals appealing decisions of election commissions must prove their electoral rights have been violated, and commissions have to demonstrate their decisions and actions were legal and appropriate.
The Law on Basic Guarantees clearly established broad standards for protection against the infringement or compromise of voters' rights, while laws on election of deputies to the State Duma and the President enumerate specific procedures for redress of grievances and resolution of disputes regarding the election process. Political participants in the 1995 and 1996 elections have shown greater willingness to use opportunities under the law for both administrative and judicial appeals. Voters, candidates, electoral associations and initiative groups are increasingly exercising their right to complain if they believe they have not been treated fairly.
Judicial Review of Election Complaints
Complaints before the Supreme Court may be reviewed by one judge, rather than the customary three judge panel with the consent of the complainant. Appeals of CEC decisions are generally heard by only one judge. The Procurator General's Office is informed of cases in advance and a procurator usually participates in the proceeding. The procurator's role is to represent the state and law, even though the case is a civil rather than criminal one. Procurators review evidence, ask questions of parties to the case, and advise the judge of legal issues and statutory interpretation. Hearings begin with an overview of the case presented by the judge, move to presentation of evidence and testimony by the parties, and concludes with the judge's deliberation and decision of the case.
During the course of the December 1993 elections, only six appeals were filed with the Supreme Court of the Russian Federation against decisions of the Central Election Commission -- all of which were denied. In the December 1995 elections, 93 complaints and appeals were brought to the Supreme Court, of which 59 were accepted for consideration by the Court (many of the 34 cases refused consideration by the court involved complaints about district commissions, particularly as to their refusal to register candidates for single-mandate seats, which the Court believed to be the more appropriate jurisdiction of courts at the subject or local level). Approximately 100 cases arising from the 1995 State Duma elections were also filed in courts at the subject level.
Of the 59 cases considered by the Supreme Court related to the State Duma elections, 38 complaints or appeals were denied, 20 were granted and 1 was dropped by the complainant. Issues most prevalent were initial registration of electoral associations and blocs; authentication of federal slates of candidates by electoral associations and blocs for purposes of signature petition collection; refusal to register slates, often based on allegedly inadequate or invalid signature collection (four appeals were successful and eight were not); and withdrawing of names from the federal list of candidates (the Supreme Court overturned the CEC's denial of registration of the electoral bloc Yabloko based on candidate withdrawal).
Complaints Regarding the Registration of Presidential Candidates
During the period surrounding the presidential elections, 32 cases had been brought to the Supreme Court as of mid-July 1996. Several of these cases were brought as appeals of Central Election Commission decisions regarding the nomination and registration of candidates, particularly with respect to whether signatures on candidate petitions were insufficient, invalid, or fraudulent. One million signatures were required to qualify for Presidential candidacy, with no more than 7% of the signatures coming from any one Subject of the Russian Federation. The review of signatures on candidate petitions overwhelmed the Central Election Commission and its staff, and subsequent complaints and appeals regarding CEC decisions dominated the adjudication process.
The case involving the refusal to register A. Brynsalov based on invalidation of significant portions of his signature petition was particularly controversial. Representatives of the voters' initiative group which nominated Brynsalov submitted to the CEC signature petitions containing in excess of 1.3 million signatures in support of their candidate. The CEC denied Brynsalov registration. They cited the fact that some signatures had been found to be invalid, had otherwise failed to meet the legal requirements, or suffered other technical insufficiencies. The rejection of the signatures in these petitions would not necessarily have been sufficient to put the total number of signatures below the required threshold. However, the most prominent grounds cited by the CEC as the basis for their denial was that authorized representatives of the candidate who are required to certify the petitions before they are submitted to the CEC, had failed to comply with the federal laws. In particular, the CEC had found, in addition to the invalidity or insufficiency of some signatures contained in the petitions, information provided by some collectors was «fictitious» or misrepresented. They had determined, therefore, that all signatures collected by those persons should be rejected. The CEC's determination then went much further. They generally faulted the authorized representative for certifying petitions containing false or fictitious information provided about the collector. They concluded, therefore, that any petitions certified by that authorized representative within the relevant Subject, regardless of the legitimacy of the other collectors or the information they provided should also be rejected. It was the carte blanche rejection of these other petitions which ultimately put the total number of signatures below the threshold resulting in the candidate's registration being denied.
The protracted rejection of all petitions within a Subject on the basis of questionable information or handling of individual petitions was most likely thought to be justified by the CEC since their similar action had been upheld by the Supreme Court during the 1995 parliamentary elections. In that case involving the electoral bloc «Front of Public Salvation,» the court had ruled that when petitions submitted by a particular collector were found to contain fraudulent or deliberately misrepresented signatures of voters, all petitions submitted by that collector could be rejected. They also supported the CEC's contention that if documents certified by an authorized representative were found to be fake, the signature lists certified by that representative could also be withdrawn from the count. The Supreme court held that on the basis of the violations committed by the collector and the authorized representative in these instances, the CEC was entitled to distrust other petitions submitted by these individuals.
The Supreme Court seemed to reverse its position in the Brynsalov case. However, there may have been a subtle distinction between the two cases. The 1995 case stressed the falsification or misrepresentation of the voters' signatures contained in the petition. In the Brynsalov case there was particular emphasis placed on false or questionable information about the collectors themselves. For example, one collector was perceived to be a fictitious person, and residence information provided by another collector was challenged. In another example, the collector was less than 18 years of age.
Ultimately, in the Brynsalov case the Supreme Court found unlawful the decision of the CEC unlawful and instructed them to register Brynsalov as a candidate for President of the Russian Federation. The Court, in its decision, disagreed with CEC procedures for verifying voter signatures and rejecting invalid signatures. The Supreme Court held that grounds found for rejecting the petitions of one collector could not be automatically extended to serve as the basis for rejecting signatures collected in a Subject by other collectors or certified by the same authorized representative. Instead, the court ruled that specific evidence or facts of violations of the law had to be found for each collector petition individually. The Court found similarly in the case of presidential hopeful Martin Shakuum.
In a number of other cases, however, evidence of inaccurate, incomplete, or falsified information was sufficient to bring the number of valid signatures below the threshold required for registration as a candidate. Anatoly Tarasov, for example, appealed against the CEC's refusal to register him as a candidate for President of the Russian Federation citing the failure of his representatives to obtain from the CEC, information on the process of verification and the finding of reviewers as they pertained to his petition and alleging that no expert analysis had actually been conducted.
The Court rejected the complaint, finding that the initiative group of Tarasov submitted to the CEC over 1.3 million signatures of which 582,443 were rejected either due to the provision of incomplete or inaccurate information on signature collectors, authorized representatives of the initiative group, or voters. In Lippetsk, Voronezh, Chelyabinsk, Krasnodar, and Krasnoyarsk, the Court found that signature collectors actually fabricated petitions without actually soliciting voters' signatures. Due to the breadth of deliberate falsification by certain signature collectors, the Court upheld the CEC's decision to withdraw all petitions submitted by those persons.
In another case, L. Ubozhko appealed against the resolution of the CEC to deny his registration as a candidate for President of the Russian Federation, stating that his authorized representatives had met the requirements set by the CEC for registration. In this case, the Court relied upon the testimony of handwriting experts who determined that 172,000 signatures were, in fact, fabricated. The Court also accepted the CEC's determination that inaccurate passport information contained in petitions and lack of certification by authorized representatives of other petitions was in violation of the law. The total number of valid signatures was less that the 1 million required by law.
Court Cases Involving Pre-Election Campaigns
Once candidates were registered, the bulk of cases brought before the Supreme Court involved
violation of candidate's rights during the campaign period, compliance of CEC regulations with the federal electoral code, in particular with regard to the storage of election documents including ballots, and the integrity of election results. The most high profile campaign case involved legal guarantees of free air time on state television. Presidential candidate Martin Shakuum brought suit over the decision of the leadership of ORT Television not to broadcast candidate debates, claiming that ORT television unlawfully infringed upon his rights as a candidate and alleging further violated these rights by the CEC which failed to enforce legal/regulatory guarantees of free air time and to respond to the candidate's complaint within the time frame stipulated by law. The Court agreed, finding actions by the ORT leadership and inaction of the CEC illegal.
Allegations of Election Fraud
Registration and campaign related cases were soon overshadowed, as the first case alleging election fraud was brought before the Supreme Court. Following the first round of elections, the integrity of election results in the Republic of Tartarstan was questioned by V.G. Soloviev. The case was brought directly to the Supreme Court of the Russian Federation, based on the CEC's acceptance of the certified protocol of results from the Tartarstan Subject Election Commission. As such, the CEC was placed in the position of defendant, rather that the Tartarstan election officials who were alleged to have manipulated the results. The complainant offered as evidence certified copies of protocols of subordinate election commissions which did not correspond with the numbers being reported by the SEC. In this case, the CEC defended its own performance in summarizing and announcing voting results pursuant to the law and assisted the SEC in its defense. Of concern, the CEC attorney's attempted to deny the evidentiary value and legal sufficiency of certified copies of protocols obtained by candidate observers of territorial and polling site commissions. By taking such a position, the CEC undermined the transparency and accountability envisioned by the federal electoral code and reinforced the CEC's own regulations and instructions to its subordinate commissions. The case was ultimately suspended by the Court and referred to the Office of the Procurator General for investigation of criminal liability on the part of election authorities in Tartarstan. As of September 1996, the investigation is still underway with representatives of the Procurator General currently in Tartarstan.
Following the second round, Soloviev brought additional cases alleging manipulation of vote returns in the Subjects of the Russian Federation. A second case was brought before the Court and involved reported results in the Republic of Mordovia. The CEC, to its credit, took a significantly different tact with respect to this complaint, one which served to pinpoint and correct falsified returns and build public confidence in the electoral system and the adjudication of grievances process. CEC attorneys requested a postponement of the case until its representatives could be deployed to Mordovia to review the matter and, if necessary, make adjustments in the official results. The Court concurred. CEC representatives did confirm falsification of results in one territory of Mordovia, where a significant number of votes cast in favor of Zyuganov were recorded as «Against All Candidates,» and subsequently adjusted vote totals for the Republic. As a result, the Court determined that there was no basis to hear the complaint, and dismissed the case. The CEC has referred the case to the Procurator General for investigation of criminal liability.
As of September, two additional cases involving alleged falsification in Saratov and Rostov have been brought by Soloviev, the complainant in all election fraud cases to date. These, however, have been forwarded directly to the CEC for their review and determination.
Election Commission Review of Complaints
For the recent Presidential and State Duma elections, the Central Election Commission has established internal «working groups» to process complaints. The responsibilities of these groups correspond with three substantive areas: complaints related to pre-election agitation and media disputes; complaints related to the election process itself, including voting and tabulation; and complaints related to campaign financing. The working groups include participation of commissioners, legal department staff and support staff.
Written complaints brought to the commission are entered into a «log» and assigned to the appropriate working group, which have three days from the receipt of the complaint to conduct a preliminary review. A team comprised of a commissioner member, an attorney from the CEC Legal Department, and a staff person with expertise in the subject matter generally examines the issues involved and evidence presented, prepares an overview outline, and makes preliminary findings and recommendations. Based on the team's findings and their own deliberation, the working group responds to the complainant. If the complainant is satisfied with this decision, the matter is concluded. If the complainant rejects this decision, the case can be brought forward for a hearing before the full Commission. The Commission's decision can, of course, be appealed to the Supreme Court.
Foreign observers of the Russian election process during the past year have been struck by how often election commission decisions appealed to the Supreme Court seemed to revolve around relatively arcane details of procedure and form. The Central Election Commission was particularly demanding of exact information and absolute adherence to formal requirements, especially in the filing of nomination documents and signature petitions. Moreover, observers noticed a tendency for election commissions to view complaints or appeals of their decisions as a sign of failure or an insult rather than a sign of a vigorous and competitive political environment.
By 1 January 1996, the Central Election Commission had considered 128 complaints from voters, candidates, electoral associations and blocs concerning the decisions, actions and inactions of election commissions during the State Duma elections. Hearings were held for nearly 40 of these cases. Most appeals involved denials of registration to candidates by district (single-mandate constituency) election commissions due to allegedly inadequate, invalid or improperly obtained signatures on petitions. Some related to allegations about miscalculations in voting results announced by district election commissions, including contested elections or decisions invalidating elections in the single-mandate districts.
The 1996 Presidential election generated far more complaints than the 1995 State Duma elections alleging infringements or violations related to pre-election campaigning and mass media. The CEC working group responsible for reviewing complaints of that nature considered over a hundred complaints (and many were also heard by the Supreme Court). These complaints involved disputes or allegations involving: denial of broadcasting time on television and radio stations or unfair treatment in broadcast of candidate debates; dissemination of anonymous campaign literature; unequal treatment in placement of newspaper advertising, or negative or false content of editorials; and use of government assets or participation of government personnel to favor a candidate.
With regard to the latter, a significant number of complaints were brought before the CEC concerning reported coercion of voters in the signature collection process, most notably by the Administration of Railways under the jurisdiction of the Ministry of Communications to the benefit of incumbent President Boris Yeltsin. Subject Election Commissions (SEC), at the instruction of the CEC, verified facts brought forth by complainants. Generally, the SECs failed to find concrete evidence of violations, although a number of cases were found to be grounded, in Irkursk, Amur, and Kirov oblasts and the Udmurt Republic. Complaints were also brought to election commissions in Moscow, Tyumen, and Astrakhan concerning the participation of government executive authorities in campaign activities which benefited the incumbent.
Formal complaints to the Central Election Commission during the Presidential elections regarding the law and regulations on campaign finance were virtually non-existent; violations brought to the attention of the CEC were voluntarily corrected by candidates and their supporters. Disputes arose at the end of the campaign regarding the responsibility of candidates who withdrew from the election to return funds to the federal budget and regarding the disposition of assets remaining in candidate accounts after the election.
Channeling Complaints Under Present Law
As noted above, any citizen can file a complaint with the courts or election commissions or both alleging violations of their electoral rights by governmental bodies or election authorities. Pursuant to the Federal Law on Basic Guarantees of Electoral Rights, a complainant is not required to seek administrative redress or preliminary appeal through election commissions prior to seeking court review (such a requirement generally exists under laws in the United States, called the doctrine of «exhaustion of administrative remedies»). The fundamental right of access to the adjudication process must be protected, but some problems have arisen under the current laws and procedures as to division of authority and original or appellate jurisdiction among governmental bodies.
Division of Adjudication Authority Between the Courts and Election Commissions
The rights under the law to either pursue complaints or appeals of official decisions through courts or election commissions has resulted in a confusing «parallel track» for complaint adjudication. No procedural or substantive lines of jurisdiction distinguish the two options. In particularly, some complainants have submitted their cases simultaneously through administrative channels and to the courts. In these circumstances election commissions have questioned their authority or obligation to pursue their review of the complaint in view of the court's superior juridical status. Some cases appear to have jumped back and forth causing delay and interruptions of their resolution.
Access to the Supreme Court
The Supreme Court is obligated to hear any case properly filed with it regardless of legitimacy. Filing fees are extremely low. Complainants face no serious disincentives or obstacles to filing a case and tying up the court's calendar. For example, the Court was asked to hear an appeal of the CEC decision to deny registration to prospective candidate Yuri Novoshilov despite the fact that he failed to present any documents required by law, including signature petitions in support of his candidacy.
Delegation of Review Authority Within the Election Commission Structure
The election laws specifically contemplate adjudicative review of decisions, actions and inactions of lower level election commissions by both subject level commissions and the Central Election Commission. Many complaints, however, are submitted directly to the CEC rather than through the hierarchy of lower level commissions. In addition, the vast majority of complaints which are generated from lower level commissions go directly on appeal to the CEC or to the Supreme Court. Subject election commissions, in general, appear be passed over in the appeal process as either unnecessary or hopelessly biased by local political interests. It is uncertain how much discretion to review facts the Central Election Commission chooses to exercise in hearing appeals from lower commissions, or if its review is based solely on whether the lower commission properly interpreted and applied the law. And, in at least one instance, the Commission declined to independently investigate allegations regarding vote count manipulation and fraud or challenged the accuracy of the vote count, claiming it was bound by the election law to accept results on protocols provided by subject commissions.
Investigative Power and the Role of Procurator Offices
Many election-related complaints appear to be filed directly with procurator (public prosecutor) offices although neither the election laws nor the relevant regulations make any reference to this option. In other circumstances, cases appear to be referred to the procurator for investigation and recommendation by both courts and election commissions, especially when criminal conduct may be involved (in which case the procurator may subsequently bring criminal charges directly). The CEC apparently refers serious cases to the Procurator General in Moscow when assistance is needed to investigate facts and gathering evidence, since the CEC lacks manpower and resources for major investigations. It is unclear precisely what process or standard is used for these referrals, what disposition must then be made or on what time frame, and in what legal status the case remains while it is «out of the hands» of the CEC or courts for procurator review.
For Consideration
Although the rights of citizens and political participants are already firmly ensconced in the election laws, improvement of the actual process of adjudication of complaints remains a substantive issue that warrants continued attention. The primary focus of revisions to the election law and procedures, and any related aspects of judicial practices in the area of complaint adjudication should be on separating, clarifying and making more efficient the avenues for pursuing grievances and resolving disputes. The objective should be to ensure that the system is not only responsive, but is also capable of rendering fair and enforceable results in time to be meaningful in the election context. Throughout this Chapter, the following impediments have been identified which have tended to confound the existing process. They have included such issues as unclear distinctions as to the proper venues through which complaints should be brought, delays caused by parallel tracks being pursued simultaneously through administrative and judicial channels, and failure of the system to respond in time.
13.1. It could be extremely helpful to consider redefining the appropriate channels through which claims and grievances should be pursued to , based on a structure that delineates between the types of issues to which they pertain. Under the current laws, specifically Articles 16 of the Law on Basic Guarantees of Electoral Rights and Article 23 of the Law on the Election of the President, aggrieved persons may appeal for remedy to the election commissions or the courts. Article 23 also states that submission of an appeal to the election commission is not a prerequisite for filing before the court. This non-specific approach, while well-intended, has actually caused some of the problems that have sometimes hampered the effectiveness of the adjudication process in the election context. The advantage of dictating the specific channels for the first line of appeal more precisely is that it could help resolve some of the confusion and delays that have been experienced in the past.
As a springboard for discussion, the table that follows represents one approach as to how the laws might be amended to assign jurisdictions for initial entry points for appeal of complaints by subject matter. The sample of an approach presented here tries to ensure that, to the extent possible, administrative remedies can be exhausted before relief is sought through the courts. This example is based on issues related to presidential elections. However, the approach could be modified to accommodate other types of elections.
Articulation of clear guidelines within the law would greatly assist citizens, candidates and election participants in understanding how they may appeal adverse decisions, actions or omissions or other violations on the part of election commissions or violations committed by officials of state and local-government bodies, the media, candidates or other election participants. It would help the various commissions and juridical bodies in understanding their authorities and responsibilities and where they fit in adjudication process..
Potential Structure For
Channeling Complaints For Adjudication
GENERAL ISSUE OF COMPLAINT
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FIRST CHANNEL OF APPEAL
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SUBSEQUENT APPEAL
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Registration of Candidates and Electoral Blocs
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Supreme Court (Since the CEC registers candidates and blocs, their is no higher level from which to seek administrative remedy)
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N/A
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Challenges of the Legality of Regulations of the Central Election Commissions
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Supreme Court
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N/A
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Preparation and Implementation of Election Administrative and Voting Procedures Including Preparation ofVoter Lists; Complaints of Observers and Deliberative Voting Members on Actions or Decisions of Election Commissions; Ballot Preparation; Conduct of the Poll; Mobile Voting; Counting the Votes, Summarization of Results, etc.
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Through the Hierarchy of Election Commissions
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To the highest court of the relevant Subject with subsequent appeal to the Supreme Court
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Campaign Financing
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The Central Election Commission (or an Independent Campaign Finance Commission, if one is established)
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To the Supreme Court
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Challenges Related to Election Results
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Through the Hierarchy of Commissions with Territorial Commissions obligated to investigate complaints regarding results reported by polling stations; Subject Commissions investigating complaints regarding summarized protocols of Territories and the CEC investigating complaints regarding summarized results reported by Subjects.
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The Supreme Court or Procurator General when brought by the CEC due to failure of lower level commissions to comply with CEC decisions, or when there is evidence of criminal activity.To the Supreme Court when brought by complainants who are not satisfied by administrative remedies of the CEC.
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GENERAL ISSUE OF COMPLAINT
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FIRST CHANNEL OF APPEAL
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SUBSEQUENT APPEAL
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Pre-Election Campaigns and the Media
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Judicial Chamber on Informational Disputes;In these cases, the Judicial Chamber would serve as the recourse for seeking administrative remedy. (See Chapter 8: Pre-Election Campaigns and the Media, Recommendation 8.9)
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To the Supreme Court: Cases would be brought by complainants who seek to appeal decisions of the Judicial Chamber;To the Supreme Court or Procurator General: Cases brought by the Judicial Chamber in cases in which entities refuse to comply with the rulings of the Chamber.
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13.2. In dealing with cases related specifically to actions and decisions of commissions including errors, omissions or violations, the law should require appeals of subordinate election commissions to be initially brought to higher commissions. Except in extraordinary circumstances specifically delineated under the law, complainants should not have the option of bringing election-related complaints or appeals of decisions, actions or inactions of subordinate election commissions directly to court. Prior to judicial review, complainants should be required to «exhaust» available administrative remedies. All complaints should be first brought to appropriate commissions and all appeals of their decisions brought to the subject commissions and then Central Election Commission. Only appeals of CEC actions should proceed to the Supreme Court (which may refer cases to lower courts or procurator offices for fact finding where appropriate).
13.3. Mechanisms should be devised to improve the capacity of subject election commissions to review complaints and appeals. Under the election laws, subject election commissions are permanent bodies, and are specifically recognized as having responsibilities for reviewing appeals of decisions of subordinate election commissions (district and territorial commissions are neither permanent nor empowered to review appeals). The role of subject election commissions in complaint adjudication should be deliberately elevated by procedural changes (including those described immediately above). Their capacity to professionally and responsibly perform this function should be strengthened through training, additional resources, and monitoring by the Central Election Commission.
13.4. The scope of authority and responsibilities of courts in reviewing election commissions actions should be clarified in law. After appeals through subject election commissions and the Central Election Commission have been exhausted, review at the Supreme Court of the Russian Federation should largely be limited to questions of interpretation and application of the law. To the extent permitted by general laws and regulations of civil procedure, the Court's role in evidence gathering and fact determination should be limited to extraordinary situations where further limited fact-finding by the Supreme Court would be more efficient. The Court should refer cases back to election commissions or lower courts, which are presumably closer to the events and persons involved (or perhaps to procurator offices), for further fact-finding when necessary. Appeals to the Supreme Court should be permitted on a more discretionary basis, with a threshold showing of significance required as to legal issues or potential harm to complainant.
13.5. The election laws or civil code should specify a statute of limitations for election-related complaints or appeals of election commission actions. Complainants should be required to file complaints or appeals within a reasonable time of events or discovery of a grievance.
13.6. The role of procurators in examining and investigating election-related matters should be clarified, and the investigatory authority and capacity of the Central Election Commission should be expanded. Clear guidelines should be established for when complaints may be filed directly with procurator offices (probably only in cases of legitimate allegations of criminal conduct) and under what circumstances and time lines election commissions or courts will refer cases to procurator offices for investigation. The Central Election Commission should be granted broader authority and given greater resources for investigating complaints and appeals before it, including subpoena power.
13.7. The election laws should revised to explicitly obligate the subject election commissions and the Central Election Commission to investigate allegations of vote count fraud or manipulation by subordinate commissions. The accuracy and honesty of the vote count and tabulation process is fundamental to the election process. The election laws should be amended to explicitly authorize subject election commissions to hear complaints and investigate allegations of vote count irregularities by subordinate commissions, and authorize the Central Election Commission to hear complaints and investigate similar allegations against subject commissions.
13.8. Resolution of complaints should yield consistent outcomes. A system of election laws should be comprehensible and predictable for those who participate in the election process. To promote compliance with the law, candidates, electoral organizations, election officials and voters should know what to expect from the law, election law enforcement and complaint adjudication. That information will also assist in revising the law and refining the adjudication process itself. Thus, information about complaint adjudication and other official applications of election law must be compiled, organized, routinely published and made accessible to political participants, commissions and the courts. A compendium of relevant laws and court cases election-related complaint adjudication should be created.
13.9. There is a wealth of information available which could help identify the successes and failures of the election process on election day, and during the counting and summarization procedures. At each stage commission members who disagree with the decisions of the commission or with the information provided on the protocols are allowed to attach their comments to the protocols. In addition, complaints submitted by voters, candidates and other election participants, and a statement as to how the complaints were addressed and resolved are also supposed to be attached to the protocols. Presumably, the issues have been addressed prior to the time they are transferred to the successively higher level commission. However, once they are transferred there seems to be no formal method whereby they are reviewed to ensure that they have been properly handled by lower level officials. In addition, if such a review were formalized as a standard practice, analysis of the nature of the complaints would be most beneficial in assisting election administrators in identifying trends, and where legal or procedural reforms, additional training or civic education may be may be called for. It is recommended that Territorial Elections be required to identify, segregate and transmit copies of dissenting opinions and complaints submitted with precinct protocols to the Subject Election Commissions. Subject commissions should be required to examine, summarize and report on the complaints and any resolution that ensued within their region. These reports should be submitted to the Central Election Commission within 90 days in order that the CEC may be apprised of difficulties being encountered and can strategize as to what action may be necessary not only in the immediate term, but also for the future.
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