Chairman of the Central Election Commission of the Russian Federation V. E. Churov: «ORGANIZING AN OPEN PUBLIC PROCESS OF ADJUDICATION OF GRIEVANCES», January 2011

Complaining against violations and liability for violating electoral rights of citizens. Human rights and civil freedoms are proclaimed by the fundamental international documents and laws of the democratic states. These legal instruments pay special attention to the role of the government in ensuring their effective protection, the timeframe within which complaints against violations of electoral rights of citizens must be adjudicated, independence and impartiality of election commissions and courts, and liability of the individuals responsible for illegal actions (omissions).

When it comes to ensuring and protecting civil rights, the Russian Federation acts in compliance with the international documents endorsed and ratified thereby that enforce the guarantees of civil and political rights and freedoms, as well as the fundamental standards and criteria of fair and just elections.

The Constitution of the Russian Federation ensures the right of citizens to submit individual and collective petitions to state and local self-government bodies.

The legal relations associated with the right of citizens of the Russian Federation to submit petitions to state and local self-government bodies, as well as the procedure regulating the review of citizens’ petitions by state and local self-government bodies and governmental officials are regulated by the RF Federal Law “On reviewing petitions submitted by citizens of the Russian Federation”. The established procedure applies to all civil petitions except for those that are subject to review in compliance with the procedures accounted for by the federal constitutional laws and other federal laws. The right to submit a petition is exercised freely and voluntarily and must not violate the rights and freedoms of other citizens.

The election laws of the Russian Federation and the election laws of the subjects of the Russian Federation provide for a special procedure that regulates adjudication of grievances against violations of the electoral rights of citizens.

The special attention towards ensuring adequate and timely protection of the electoral rights of citizens in the course of adjudication of election-related grievances is accounted for by the importance of the subject of disputes and the definition of electoral rights as part and parcel of the political rights and freedoms of citizens and the role of elections as a power-forming and founding institution in the life of society, as well as the clearly defined timeframes for execution of specific electoral actions.

Russian law considers a grievance as a type of petition submitted with the view to reinstate or protect violated rights, freedoms, or legal interests of the petitioner, as well as violated rights, freedoms, or legal interests of other citizens. Russian law considers a petition as a citizen’s request for assistance in exercising his constitutional rights and freedoms or the constitutional rights and freedoms of other citizens, or as a notice reporting violations of laws and other regulatory acts, deficiencies in the operation of state bodies, local self-government bodies, and governmental officials, or as a criticism of the aforementioned bodies and governmental officials and their actions.

The laws of the Russian Federation provide for two procedures regulating adjudication of grievances (complaints, petitions) – administrative and judicial. They differ significantly in terms of the scope of individuals authorised to submit a relevant complaint, the procedures involved, as well as the legal consequences of the decisions adopted as a result of such procedures. If a complaint is submitted to a court of law and an election commission simultaneously, the latter must suspend its review; if the court adopts a decision upon the complaint in question the election commission must terminate its review.

At the same time, despite being relatively autonomous legally, the administrative and judicial procedures regulating adjudication of grievances against violations of electoral rights of citizens and resolution of their electoral disputes are complementary.

Submitting complaints against violations of electoral rights (petitioning) to election commissions. Pursuant to the Constitution of the Russian Federation, the duty to protect the electoral rights of citizens is vested with the state. In particular, election commissions protect the electoral rights of citizens on behalf of the state.

Russian election law provides for the right of citizens to submit complaints against violations of their electoral rights to election commissions. Pursuant to the RF Federal Law “On basic guarantees of electoral rights and the right of citizens of the Russian Federation to participate in a referendum”, election commissions ensure protection of the rights of citizens in the course of preparation and conduct of elections, including adjudication of election-related grievances.

Practice shows that the election process participants actively exercise this right and election commissions review petitions and grievances in compliance with the administrative procedure. It is important to organize an effective process of adjudication of grievances submitted by citizens against violations of the election laws.

Although election disputes (petitions regarding violations of electoral rights) may be considered undesirable side-effects of any election campaign, they are nevertheless inevitable because the interests of the election process participants – political parties, candidates, and voters – collide in the process of preparation and conduct of elections. The actions of the election process participants may come to contradict the election laws and conflicts – sometimes rather serious ones – may arise and involve a broad scope of subjects, e.g. representatives of mass media, election organizers, law-enforcement bodies, candidates, and voters.

At the same time, a significant number of election disputes indicates that citizens are becoming more politically active, that they are coming to recognise the importance of elections for society and the state, and that they are showing a greater interest in election outcomes. The growing number of petitions submitted by citizens to ensure protection of their electoral rights is largely a confirmation of the competitive nature of election campaigns and the willingness of the people to view election bodies as arbiters in the resolution of disputable and conflict situations.

Although the election laws provide for a framework nature of the procedure of adjudication of grievances, the RF Federal Law “On basic guarantees of electoral rights and the right of citizens of the Russian Federation to participate in a referendum” contains the following important requirements:

Adjudication of grievances is mandatory: election commissions must review, within the scope of their authority, all petitions regarding violations of applicable laws submitted thereto in the course of an election campaign, investigate these petitions, and respond to the petitioners in writing;

A broad scope of opportunities is available to respond to violations: election commissions have the right to request law-enforcement and executive power bodies to conduct relevant investigations with the view to suppress the reported infractions; these bodies must take measures to suppress the reported infractions within an established timeframe and immediately report their investigation results to the relevant election commission;

Grievances must be adjudicated publicly: election commissions adjudicating petitions and grievances against violations of the electoral rights of citizens and their right to participate in a referendum must invite to their meetings the petitioners, as well as the individuals whose actions (omissions) are being complained against or reviewed by the election commissions in question;

Grievances must be adjudicated in an operative manner: the law provides for a tight timeframe within which election-related grievances must be adjudicated, e.g. petitions submitted on the election day or the day following the election day must be responded to immediately.

Given the hierarchical organization of the system of election commissions (the election system of the Russian Federation disposes of the Central Election Commission, the election commissions of the subjects of the Russian Federation, municipal election commissions, district election commissions, territorial election commissions, including district, city, and other election commissions, and precinct election commissions), the process of adjudication of grievances is organized as described below.

Complaints against the decisions or actions (omissions) of election commissions and their officials may be submitted directly to the higher-level election commission. For example, a complaint against decisions or actions (omissions) of the election commission of a municipal district must be reviewed by the election commission of the subject of the Russian Federation. Upon review of the complaint the election commission must adopt a motivated decision on the merits, except for cases when the circumstances reported in the complaint were not reviewed by the lower-level election commission.

To make the system more effective a useful and mobile form of adjudication of grievances has been found – establishment of working groups that review, among other petitions, complaints against actions (omissions) of election commissions and their officials violating the electoral rights and the right of citizens of the Russian Federation to participate in a referendum, as well as working groups on information disputes and other issues associated with the provision of information support to elections. Such working groups are only authorised to provide recommendations but their principal task is to examine all circumstances and prepare materials required to adopt a decision on the merits by the relevant election commission.

An important factor that guarantees observation and additional protection of the electoral rights of citizens, including in terms of adjudication of grievances and the practical value of its results, is the following provision of the RF Federal Law “On basic guarantees of electoral rights and the right of citizens of the Russian Federation to participate in a referendum”: the decisions adopted by a higher-level election commission within the scope of its authority are mandatory for all lower-level election commissions.

If a decision of an election commission is inconsistent with law or adopted outside its scope of authority it is subject to immediate invalidation by the higher-level election commission or court. In this case the higher-level election commission has the right to adopt a decision on the merits or forward relevant materials for a repeat review to the lower-level election commission whose decision has been invalidated. If the lower-level election commission fails to adjudicate the dispute in question, the higher-level election commission has the right to adopt a decision on the merits. Pursuant to applicable laws, an election commission that fails to comply with the decision of a higher-level election commission must be disbanded.

An additional guarantee of the electoral rights of citizens has to do with the fact that the members of an election commission with the deciding vote, when identifying an entity’s actions (omissions) as an infraction, have the right to put together an administrative infraction protocol and forward the materials to a court of law that will decide if the entity in question must be held liable.

Submitting petitions regarding election law violations to the Central Election Commission of the Russian Federation. It should be recognized that a significant number of petitions are reviewed by higher-level election commissions because their subordinate election commissions fail to exercise their authority and perform their official duties properly and in full. Citizens who do not receive responses to their petitions from relevant election commissions are often forced to petition directly to the Central Election Commission of the Russian Federation.

The total number of petitions submitted to the Central Election Commission of the Russian Federation when preparing and conducting universal voting days in the subjects of the Russian Federation can be represented as follows (the number of polls must be taken into account): October 2009 – 6780 polls and 453 petitions; March 2010 – 6075 polls and 425 petitions, respectively; October 2010 – 7586 and 581. It would be legitimate to ask how many violations complained against by the petitioners have been confirmed. For example, every seventh petition submitted to the Central Election Commission of the Russian Federation in the course of the March 2010 elections was found justified, in the course of the October 2010 elections – every ninth.

The working group of the Central Election Commission of the Russian Federation responsible for preliminary review of complaints (petitions) submitted in the course of the universal election day in the subjects of the Russian Federation in October 2010 examined 14 complaints against the decisions of the election commissions of the subjects of the Russian Federation. Twelve of them were reviewed at the subsequent RF CEC meeting and seven of them were satisfied. It should be emphasized that at its meetings the Central Election Commission of the Russian Federation reviews only vital decisions adopted by lower-level election commissions, e.g. decisions regarding the registration of a candidate or a list of candidates, decisions regarding the establishment of election commissions, decisions concerning voting results and election outcomes, and some others.

Openness and transparency in adjudication of grievances within the Russian election system. Open and transparent adjudication of grievances enhances the responsibility of election commissions and requires them to adopt competent legal decisions. These principles are important in operation of election commissions of all levels. For example, all complaints and petitions submitted to the Central Election Commission of the Russian Federation in the course of the October 10, 2010 elections were discussed by representatives of Russian public organizations, election law experts, lawyers, and political scientists. Since 2007 the Central Election Commission of the Russian Federation has been preparing a special publication listing all complaints and petitions submitted to the RF CEC, as well as decisions adopted by the RF CEC in response to these complaints and petitions; this publication is disseminated among the federal bodies of state power and political parties and is also made available on the Internet.

There is another method of reviewing complaints and petitions of citizens: the members of the Central Election Commission of the Russian Federation and the members of the election commissions of the subjects of the Russian Federation personally receive citizens who complain about violations of their electoral rights. Their grievances are adjudicated in compliance with the established procedure.

In addition to regular mail and personal visits to election commissions, including the Central Election Commission of the Russian Federation, RF citizens may resort to the Internet-portal that brings together the official website of the Central Election Commission of the Russian Federation and the websites of the election commissions of the subjects of the Russian Federation. Petitions submitted electronically are reviewed in compliance with the established procedure.

The websites of the election commissions of a number of subjects of the Russian Federation (e.g. in the Krasnodar and Sverdlovsk regions) dispose of a special resource that enables the website users to obtain information about the meetings of the respective commissions, including the meetings at which they review petitions regarding violations of electoral rights of citizens, online.

Telephone “hotlines” connecting voters with the Central Election Commission of the Russian Federation, as well as the election commissions of the subjects of the Russian Federation, are made available twice a year on the universal voting days. Voters’ petitions are reviewed and their issues are resolved on the spot or forwarded for examination to lower-level election commissions whose activities are strictly monitored.

Observation of the electoral rights of citizens is monitored by the public. To that end, three telephone “hotlines” were organized and made available to the voters by Russian public organizations on the most recent universal voting day, October 10, 2010. Voters could call one of the three numbers to ask any election-related question and obtain a qualified answer. Voters’ complaints against violations of the election laws and other election-related issues were reviewed and responded to operatively. Summary reports on the activities of the telephone “hotlines” were submitted to the relevant bodies of state power and the Central Election Commission of the Russian Federation.

The public telephone “hotlines” were organized by the Russian Fund for Free Elections, “Civic Control”, the association of non-commercial organizations for the protection of electoral rights, and the “Fair Choice” Public Board.

The telephone “hotline” organizers used various forms of communication with voters: they took telephone calls, received SMS-messages, and monitored federal and regional mass media and websites.

The Russian Fund for Free Elections took 1771 telephone calls; the “Civic Control” Association took 283 telephone calls and received 253 SMS-messages; the “Fair Choice” Public Board took 43 telephone calls.

432 of the 1771 telephone calls taken by the Russian Fund for Free Elections were placed on the universal voting day, October 10, 2010. The maximum number of calls (489) was taken by the public telephone “hotline” in the Samara region, in the Republic of Tatarstan – 284, in the Republic of Chuvashia – 175, in the Tambov region – 142, and 200 calls were taken by the central station in Moscow.  

In terms of their nature the calls can be broken down as follows: voters’ questions – 732 calls (41.3%), calls pertaining to social issues – 359 (20.3%), organization of the election process – 172 (9.7%), illegal campaigning – 110 (6.2%); and the remaining calls pertained to other issues. The following measures were taken: explanations (consultations) were provided in response to 1271 calls (61.6%), 295 calls were forwarded to relevant election commissions (14.3%), 262 calls were forwarded to bodies of executive power (12.7%), and other measures were taken in response to the remaining calls.

The activity of citizens in the subjects of the Russian Federation was primarily accounted for by the level of the elections held in the regions. For example, 259 calls (14.6%) were taken on account of the election of deputies of the legislative (representative) bodies of power of the subjects of the Russian Federation, 1018 (57.5%) calls were taken on account of the election of deputies of the representative bodies of the municipalities of the administrative centres of the subjects of the Russian Federation, 256 (14.5%) calls were taken on account of the election of heads of the municipalities of the administrative centres (capitals) of the subjects of the Russian Federation, and 238 (13.4%) calls were taken on account of the election to local self-government bodies of the administrative centres of the subjects of the Russian Federation.

We find that this mechanism of working with citizens’ petitions is operative and efficient.

Adjudication of grievances in court. Election commissions have a broad scope of authorities and are capable of restoring the electoral rights of citizens if they are violated. Still, a significant workload associated with protection of the electoral rights of citizens is handled by courts. It is not necessary to submit a petition to an election commission before having it adjudicated in court.

Pursuant to Article 46 of the Constitution of the Russian Federation, every citizen is guaranteed judicial protection of his rights and freedoms. Such judicial protection also applies to the participation of citizens and their political associations in elections. Bodies of judicial power play a central role in the state protection of the electoral rights of citizens at all stages of the election process because court decisions are mandatory for all bodies of state power, local self-government bodies, public associations, governmental officials, and other physical and legal entities; court decisions may not be revised by other bodies of state power and compliance with court decisions is mandatory throughout the entire territory of the Russian Federation. Compliance with court decisions is mandatory for all election commissions.

These conditions and the legal meaning of court decisions contribute to a higher efficiency of adjudication of grievances. The bodies of judicial power responsible for adjudication of grievances associated with protection of the electoral rights of citizens are represented by the Constitutional Court of the Russian Federation and a system of general jurisdiction courts.

Pursuant to the RF Federal Law “On basic guarantees of electoral rights and the right of citizens of the Russian Federation to participate in a referendum”, the right to petition to court is granted to voters, referendum participants, candidates and their authorised representatives, election associations and their authorised representatives, other public associations, referendum initiative groups and their authorised representatives, election observers, as well as election commissions. These entities have the right to petition to court on their own behalf to protect their violated rights.

Pursuant to the Civil Procedural Code of the Russian Federation, the list of entities authorised to petition to court also includes prosecutors.

Grievances against the decisions of election commissions on voting results and election outcomes are adjudicated in courts of the corresponding level as per their established jurisdiction. Court reviews the decision of the election commission that organizes the election, as well as the decision of the subordinate election commission participating in the conduct of the election if the reported violations could affect the election outcomes.

For example, the Supreme Court of the Russian Federation adjudicates grievances against the decisions and actions (omissions) of the Central Election Commission of the Russian Federation, and the supreme courts of the subjects of the Russian Federation adjudicate grievances against the decisions and actions (omissions) of the election commissions of the subjects of the Russian Federation and district election commissions established for elections to the legislative (representative) bodies of state power; grievances against the decisions and actions (omissions) of other election commissions are adjudicated by district courts.

The decisions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation play a special role in the development of election law and improvement of the law enforcement practice. The role of the bodies of constitutional justice in the subjects of the Russian Federation is being strengthened. Step by step, by resolving specific legal conflicts and sometimes by correcting the legislators, the judicial branch expands the scope of tools available to protect the electoral rights of citizens.

The principal conclusions about the system and processes that have been established in the Russian Federation to adjudicate election-related grievances are as follows.

Upon the whole, Russia has developed a transparent and effective system of adjudication of election-related grievances. Election commissions review complaints and petitions of the election process participants within the established timeframe and in compliance with the legal requirements. Timely response of election commissions to the conflict situations that arise in the course of elections is an effective method of protection of the electoral rights of citizens.

At the same time, the process of adjudication of grievances requires an ongoing improvement. The actions undertaken by election commissions to adjudicate election-related grievances and the grievances themselves must be carefully analysed and used to form the foundation for coordination of efforts of the election organizers and their interaction with law-enforcement bodies and courts with the view to ensure and protect the electoral rights of citizens. By identifying deficiencies in election law and the law-enforcement practice election-related disputes help improve and democratise the Russian election system.