Context, state of play
Electoral processes in Europe and beyond include a complex series of successive stages, requiring the involvement of numerous actors, primarily voters, candidates and electoral management bodies. Political parties, courts and other relevant public authorities are also indispensable stakeholders of electoral processes.
Because the matter is complex but also because it engages political actors and political issues, electoral processes inevitably lead to disputes, a natural part of a lively domestic political life, which in turn is a natural part of a lively pluralistic system.
The adjudication of electoral disputes – also called election dispute resolution, EDR – is therefore a crucial element of effective and functional electoral governance. The issue is regularly addressed by electoral opinions of the Venice Commission and the Office for Democratic Institutions and Human Rights of the OSCE (OSCE/ODIHR) as well as by international observers in their election observation mission reports. It has been observed that there have been structural problems while dealing with electoral disputes both in law and in practice in a number of Venice Commission member States.
International and domestic instruments concerned, practices observed
Several international instruments guarantee the right to a fair trial in electoral processes.
Article 25 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides “every citizen” with a right “[t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”. General Comment No. 25 to the ICCPR states that, regarding complaints and appeals, “[t]here should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes.”
Article 3 of Additional Protocol 1 does not mention ways to complain about supposed violations during electoral processes. The case-law of the European Court of Human Rights recognised the procedural aspect of the right to free elections, implying the protection of citizens with regard to the effectiveness of the system of appeal. It emphasises that “a domestic system for effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections” (Namat Aliyev v. Azerbaijan, 8 April 2010). The Court bases its judgments inter alia on the reference document of the Council of Europe in the electoral field, which is the Venice Commission’s Code of Good Practice in Electoral Matters. The Guidelines developed in the Code of Good Practice under Section II. 3.3 deal more specifically with the issue of effective system of appeal. Among other guidelines, the Code states that “[t]he procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals” and that “[a]ll candidates and all voters registered in the constituency concerned must be entitled to appeal”.
Paragraph 5.10 of the OSCE 1990 Copenhagen Document is also relevant to Election Dispute Resolution as it entitles everyone to “have an effective means of redress against administrative decisions so as to guarantee respect for fundamental rights and ensure legal integrity”. Paragraphs 18.2 – 18.4 of the OSCE 1991 Moscow Document are pertinent as well, as they call on OSCE participating States to grant “effective means of redress against administrative regulations for individuals affected thereby and by providing the possibility for judicial review of such regulations and decisions”.
Concerning the domestic legal framework, electoral laws always provide provisions aimed at regulating complaints and appeals procedures. However, such provisions are often either too vague or on the contrary too complex or contradictory and need improvement. In some countries, a judicial review of the final decision on election results is still missing.In addition, an appropriate and proportionate system of sanctions is necessary.
Concerning the application of the law, the adjudication of electoral disputes is often criticised. Courts or administrative bodies too often rely on extremely formalistic reasons to avoid examining the substance of complaints related to elections. Moreover, electoral management bodies or courts responsible for validating elections and announcing election results have to take responsibility of their decisions. This includes the sensitive issue of cancellation of elections, which should be part of the decision-making power of the competent body. Electoral management bodies are therefore direct actors within the political arena, under pressure from authorities, candidates and political parties as well as citizens. The European Court of Human Rights underlined that a failure to accept appeals and the effective examination of the election result may violate the right to free elections under Article 3 of Protocol No. 1, recalling that the right to appeal against the election result should not be subject to unreasonable procedural limitations (Davydov and others v. Russia, 30 May 2017).
The Conference will therefore debate both the legal framework and the practice regarding the adjudication of electoral disputes.
Scope of the Conference
Electoral disputes cannot be limited to complaints on election day or on election results. It must also address any types of disputes that may arise in the course of an electoral process, including: voter and candidate registration (de-registration or refusal of registration as well); the official electoral campaign; decisions issued by administrations, public agencies and any relevant electoral stakeholder, especially election commissions; election day itself; results (their tabulation, transmission, issuance).
National electoral laws, from time to time, do not provide clear enough provisions or, on the contrary, provide ones that are too complex with regard to the various items dealing with election dispute resolution in particular, the question of competent bodies. Moreover, problematic legislation leads to problematic practice, especially regarding the admissibility of complaints and decision making at different levels.
Among the issues at stake concerning election dispute resolution, there is the question of the bodies competent to deal with electoral disputes. In a number of countries, electoral laws are often confusing or lack relevant provisions to establish clear competency of administrative and/or judicial bodies for the different grounds for complaints. Such bodies can be electoral management bodies or courts (constitutional, general, administrative or specialised courts). Sometimes, the lines between the types of disputes and competent bodies to deal with them are blurred. The Conference will debate these issues and in particular the interaction of the judiciary with electoral management bodies.
Election dispute resolution process is also about the type of complaints that can be filed by complainants. Situations vary greatly depending on the countries; overall, it potentially concerns almost all steps of an election cycle as developed earlier (in summary, pre-electoral period, including campaign period, voting day and results).
Effectiveness of election dispute resolution also relies on the standing: stakeholders who are able to file complaints, namely citizens, candidates, non-governmental organisations etc. There are still excessive limitations: in some countries, voters are able to submit complaints or appeals only if they are banned from participating in elections, without the possibility to complain on other issues, such as contesting election results. In a number of electoral laws, it has been observed that rights to file electoral complaints are too restrictive, taking into account the relation between the accessibility to complaints’ procedures and the ability of competent bodies to decide the cases within a reasonable timeframe.
The Code of Good Practice in Electoral Matters recommends that time-limits for lodging and deciding appeals be short while stating that time limits must however be long enough to make an appeal possible, to guarantee the exercise of rights of defence and an informed decision. Indeed, a number of cases brought before administrative bodies or courts are rejected for procedural reasons, either because time limits are exceeded or because the competent bodies do not take the time to analyse the substantive elements of the case, arguing of short deadlines.
Last but not least, successful election dispute resolution will rely on the effectiveness of the decision-making power of the competent body. The Conference will debate the various existing systems of decision-making, and in particular the possibility to cancel elections, wholly or partly.
In addition to the trends identified in the resolution of electoral disputes throughout Venice Commission’s member States, the scope of the Conference aims at identifying weaknesses and strengths both on procedural and substantive aspects and, if possible, to make recommendations aimed at improving both laws and practice in member States with regard to election dispute resolution and the primary role of electoral management bodies in this respect.
The Venice Commission is conducting a thorough comparative study on the issue of electoral disputes and their resolution and this Conference is organised in the context of this on-going work. By gathering relevant legislation from its member States, the Commission is observing and analysing a number of trends, either positive or negative, such as discrepancies in existing domestic laws. Beyond the legislation itself, the international observers, primarily the Parliamentary Assembly of the Council of Europe and the OSCE/ODIHR, regularly underline in their assessments of elections over expeditious complaints and appeals’ procedures and the lack of impartiality, of effective remedies and overlapping jurisdictions, or of substantive judgments while dealing with complaints filed before electoral management bodies or courts.