Unofficial translation from Russian
We, here in the Central Election Commission of the Russian Federation, have familiarized ourselves with the publications issued by a number of public organizations on the issues related to the nomination of candidates for the post of the President of the Russian Federation. Among them, it is worth noting the reports of the Committee of Civil Initiatives and the Movement for the protection of the rights of voters "Golos", which coincide with the main assessments and conclusions, thus giving grounds to assume that they have been prepared by the same group of authors.
The analytical report by the Movement for the protection of the rights of voters "Golos" called "Nomination of Candidates for Presidential Elections in Russia, appointed on March 18, 2018 (part 1)” (hereafter-the Report) deserves special attention. The Report contains information on results of the long-term monitoring of the election campaign and provides analysis of its compliance with principles and standards of free and equal elections. However, it is not explained exactly what principles and standards are meant, including by what normative acts they are established. In this regard, the criteria for evaluation of the on-going election campaign, are unclear.
Moreover, the status "observers", who have arrogated powers of "public monitoring" and the possibility of sending "long-term observers", is not clear. The Federal law "On the Election of the President of the Russian Federation" provides the possibility of sending the observers by candidates, political parties and public chambers. It is also possible to send foreign (international) observers.
In the preamble to the Report it is also declared that "in the first part the emphasis is made on the assessment of the actions of election organizers: CEC of Russia and election commissions of constituent subjects of the Russian Federation". At the same time, only one of the three sections of the Report is devoted to this topic. The first two sections are mainly devoted to the analysis of the legislation and the activities of the political parties in nominating candidates. However, the document does not contain significant remarks on the functioning of CEC of Russia and lower level election commissions. It is noted that in most cases, the activities of CEC of Russia on registration of groups of voters in support of self-nomination of candidates or registration of authorized representatives of parties was carried out in accordance with the current legislation and did not cause serious remarks and objections. At the same time, there are no examples of facts when the activities of CEC of Russia on registration of groups of voters in support of self-nomination of candidates or registration of authorized representatives of parties were carried out with violations of the current legislation.
It should also be noted that, in accordance with paragraph 1 of article 38 of the Federal Law "On the Election of the President of the Russian Federation", CEC of Russia is obliged to inspect the compliance of the procedure of the nomination of each candidate, provided by the Federal Law, as well as of information about the candidate. Therefore, CEC of Russia sends requests to the relevant authorities for conduction inspections in order to execute the requirements of the legislation.
The existence in the Report of a number of very controversial theses, which are impossible to agree with, calls for attention, while in some cases the document states incorrect subjective interpretation of various legislative norms.
1. Concerning the order of the nomination of the election, the thesis that the adoption by the Federation Council of the Federal Assembly of the Russian Federation of the decision on the appointment of the election made on 15 December 2017 and the publication of this decision on 18 December 2017 have in any way complicated the process of nomination and registration of candidates, seems far-fetched. The legal terms for the nomination of the election from 7 to 17 December 2017 have been observed. Candidates and political parties have 45 days to resolve questions related to nomination and registration.
Moreover, if during the election of the President of the Russian Federation in 2012 it was necessary to collect 2 million signatures of voters during the time allocated for the nomination and registration of candidates, currently the number of necessary signatures was reduced 20 times (down to 100 thousand) in respect of the candidate nominated by a political party and almost 7 times (down to 300 thousand signatures) in respect of a self-nominated candidate.
Turning to international experience, it should be noted that in some countries the election campaign period lasts two months, not three, as in the Russian Federation. During the same period of time, the signatures of voters are collected and other activities in support for the nomination of the candidate are provided.
It should be noted that in order to ensure the collection of signatures of voters in support of candidates, including during weekends and public holidays, the office of Sberbank PJSC, where the nominated candidates had to open a special election account, established a convenient schedule of work – it was open all days except January 1, 2 and 7, 2018 (on weekdays from 9.00 to 20.00, during weekends – from 10.00 to 18.00 without breaks).
The information contained in the Report about significant difficulties in the collection of signatures of voters, due to the weekend schedule of work of the notaries, does not withstand any criticism because the notarial certificate of the list of persons who carried out the collection of signatures can be performed any time during the process of collection of signatures - either prior to collecting, during the process and after its completion. It appears that this information is a kind of justification for the inability of the candidates without voter support to perform the procedures required by the legislation.
Concerning the authors' proposal to cement the duty of appointing elections by CEC of Russia, for example, 90, 95 or 100 days prior to the day of voting, instead of the statutory period of ten days for their appointment by the Federation Council of the Federal Assembly of the Russian Federation, it should be noted that the change of the procedure for appointing the election of the President of the Russian Federation will require changes not only to the legislation of the Russian Federation on elections, but also to the Constitution of the Russian Federation (subparagraph "г" of part 1, article 102), which can hardly be considered seriously. Currently, electoral commissions perform a backup function in the legislated procedure of appointment of elections in case of relevant authorities’ failure to appoint the election within the statutory timeframe. It is obvious that the current procedure for the appointment of elections creates necessary and effective organizational and legal guarantees for the appointment of elections and for ensuring citizens’ constitutional right to vote.
2. One of the conclusions of the Report states that "the restrictions of the right to be elected, provided for by the current legislation, related to the criminal record and the presence of a residence permit of a citizen of Russia are excessive, unfair and undemocratic. Legal uncertainty of these matters deprive some categories of Russian citizens of their passive right to vote. Doubts of a part of society that these restrictions are conjunctural do not allow us to assert that Russia has created the best possible conditions to realize their passive voting right and to hold free elections." This assessment contains conclusions based on untruthful statements.
First, there is no "legal uncertainty" in restrictions of passive right to vote, as the electoral legislation clearly defines the grounds on which a citizen is deprived of this right.
Secondly, the "doubts of a part of society" in relation to the restrictions of passive suffrage are unlikely to form a basis of unambiguous statements. At the same time, the content of the Report does not state clearly which part of society is meant or this is a private, subjective opinion of its authors.
Thirdly, the conclusion about the "excessiveness, unfairness and undemocratic character" of the restrictions on the passive suffrage contradicts the opinion of the Constitutional Court of the Russian Federation.
The Constitution of the Russian Federation (part 3 of article 55) explicitly provides, in some cases, the possibility of restricting human and civil rights and freedoms by Federal law.
Statutory restrictions of passive suffrage in relation to the persons sentenced to be confined for grave and (or) particularly grave crimes were considered by the Constitutional Court of the Russian Federation (decree No. 20-P, 10 October 2013).
According to the Constitutional Court of the Russian Federation, the Constitution of the Russian Federation, as follows from its articles 81 (part 2) and 97 (part 1), provides for making special requirements to the applicants for substitution of elective positions, arising from the constitutional and legal status of the persons occupying the corresponding positions.
The Constitutional Court of the Russian Federation emphasized that the restriction of passive suffrage and, accordingly, the prohibition to hold elective public positions for the persons who have committed grave and particularly grave crimes as a measure aimed at preventing the undermining of social support and legitimacy of public authorities, pursues constitutionally significant goals of increasing the constitutional responsibility and effectiveness of the principles of a democracy, of preservation and proper functioning of public law and order, of prevention of authority criminalization.
As a result, the restriction of passive suffrage was found to be in line with the Constitution of the Russian Federation, but it was noted that such restriction should not be indefinite.
These principles, formulated by the Constitutional Court of the Russian Federation, fully comply with the international electoral standards formulated in the OSCE and Council of Europe documents, which also note that if the conviction for actions is the basis for the restriction of suffrage, the period of such restriction must be proportional to the action and the conviction.
Reviewing the international practice, it should be noted that the restrictions of passive suffrage due to conviction are provided in the legislation of a number of countries, including European ones: Austria and Poland. Besides, in Turkey, the persons who have been convicted for committing a crime are deprived of the passive suffrage for life.
At the same time, the authors, while criticizing the provisions of the legislation related to the restriction of passive suffrage, immediately argue that "the legislator is naturally entitled to establish" the restrictions.
Fourthly, the assertion that "there is no independent forensic examination" is not supported by any arguments at all, which makes it mere allegation.
With regard to the restrictions of passive suffrage associated with a citizen's residence permit or other document confirming the right for permanent residence of the citizen of the Russian Federation in the territory of a foreign country, the following should be noted.
The Constitutional Court of the Russian Federation, in its ruling No. 797-O-O dated 4 December 2007, outlined that, since the citizen of the Russian Federation who holds the citizenship of a foreign country is in political and legal relations with both the Russian Federation and the relevant foreign country, towards which he also has constitutional and other obligations, arising from the laws of that foreign country, the significance of the citizenship of the Russian Federation as a political and legal expression of the value of connection to the Motherland for him is objectively reduced. The expression of will of such a person – in case of his election as the Deputy of a legislative (representative) power of authority – in the course of realization of Deputy powers can be conditioned not only by requirements of the constitutional law and order of the Russian Federation and interests of its people, but also by the requirements arising from his belonging to a foreign country. Meanwhile formally-legal or actual subordination of the Deputy of legislative (representative) body to the sovereign will not only of the people of the Russian Federation, but also of the people of a foreign country does not correspond to the constitutional principles of independence of the Deputy mandate and of the state sovereignty and calls into question the supremacy of the Constitution of the Russian Federation.
It should also be noted that in many democratic countries, legislation contains far stricter standards restricting passive suffrage. For example, in the USA, according to the Constitution, only a US citizen by birth can be elected the President, that is, the person who has acquired citizenship cannot be elected. A similar standard operates in Bulgaria.
3. The Report points to the legal inequality of opportunities of candidates from parties represented in the state Duma of the Federal Assembly of the Russian Federation, candidates from other political parties and self-nominated candidates. It is expressed in the fact that the candidates nominated by parliamentary parties are exempted from the need to collect signatures.
This regulation does not go beyond the discretionary powers of the Federal legislator, that, determining the order of nomination and registration of candidates for the positions substituted by election, shall have the right in the interests of the voters, according to the legal position of the Constitutional Court of the Russian Federation, expressed in the number of decisions, to make provisions of special pre-conditions allowing to exclude those participants, who do not have sufficient support of voters, from the electoral process (resolutions dated 17 November 1998, No 26-P and dated 11 June 2002 No 10-P; rulings dated 25 March 1999 No 32-O, dated 6 July 2010 No 1087-O-O, dated 24 February 2011 No 202-O-O, etc.).
4. The Report contains a contradictory thesis that the speed and scale of the campaign to inform voters is unduly broad. At the same time, it should be emphasized that awareness-raising activities during the election campaign for the election of the President of the Russian Federation are among the top priorities of the work of CEC of Russia and of the election commissions at all levels. Particular attention to this issue is paid, taking into account well-founded remarks of representatives of political parties and of the observer community on the lack of awareness of voters in certain constituent entities of the Russian Federation on elections on the single day of voting on 10 September 2017.
The Report contains a number of statements on the illegal placement of outdoor advertising violating the provisions of the Federal Law dated 25 June 2002 No. 73-FZ "On objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation" (hereinafter – the Federal Law No. 73-FZ). At the same time, this conclusion is made based on the information from a number of obscure web-sites.
We believe that the conclusion is incorrect, since the prohibition established by article 351 of Federal law No. 73-FZ, applies to the placement of outdoor advertising on objects of cultural heritage included in the register, as well as in their territories, with the exception of territories of places of interest. According to paragraph 4 of part 2 of article 2 of the Federal Law dated 13 March 2006 No. 38-FZ "On advertising", the law does not apply to communications of the state bodies, if such communications do not contain information of advertising nature and are not social advertising.
Within the competence of election commissions established by article 20 of the Federal Law "On basic guarantees of suffrage and the right to participate in a referendum of the citizens of the Russian Federation", election commissions ensure that voters are informed on terms and procedures of implementation of electoral actions, on the course of election campaign as well as on candidates, on electoral associations which nominated the candidates.
The procedure of informing voters shall be governed exclusively by the electoral legislation of the Russian Federation, which state that the right to informing voters is vested in the public authorities, local self-government bodies, election commissions, organization that issue mass media, editors of online media, physical and legal entities.
Based on the above, we believe that the restrictions established by article 351 of the Federal Law No 73-FZ in part of placing advertising on the objects of cultural heritage and their territories do not apply to the information materials placed by election commissions. At the same time, the Federal law No 19-FZ bans the placement of pre-election printed propaganda materials on monuments, obelisks, buildings, structures and premises of historic, cultural or architectural value.
At the same time, it is necessary to note some factual errors in the Report. For example, the Report states that "in the town of Kalach, Voronezh Region, an advertising banner of CEC of Russia was placed on the XIX century monument of the regional significance located 3, Krasnoarmeyskaya Sreet (object number: 3600182000)” and that “the Department of Culture of Kalachevsky Municipal Area Administration is located in this same house". According to the Election Commission of the Voronezh Region, this object is an architectural monument of district, not regional, significance, with no institutions located inside the building.
5. We believe it is impossible to agree with the statement that the activities of precinct Election Commissions (hereinafter- the PEC) members related to informing voters about the place and day of voting can be considered violation of political neutrality and involvement of the PEC in political campaigning. The work of the PEC member is not a "voluntary public activity". Members of the PEC perform state duties within the powers of precinct election commissions established by the law (article 165 of the Labor Code of the Russian Federation).
In accordance with Federal Law No 19-FZ (subparagraph 1 of paragraph 1 of article 22, paragraph 2 of article 69) the duties of the PEC during preparation and conduct of election of the President of the Russian Federation include informing voters about the address and the phone number of the PEC, its working time and about the day, time and place of voting. Such regulation is an additional guarantee of the principle of publicity during elections. In addition, actions to notify voters about the day and place of voting cannot be considered as actions of Election Commissions influencing the results of elections.
Herewith, it should be noted that door-to-door enquires executed by the PECs members are common practice during election campaigns: voters are informed about the time and place of voting; lists of voters are specified; and, during the election campaign for the President of the Russian Federation, new provisions of the legislation will also be explained, in particular the order of submitting an application for inclusion of the voter in the list of voters at his location. This work has nothing to do with agitation for a particular candidate.
6. The Report highlights that Election Commissions participate in training of public observers on the basis of agreements with public chambers and concludes that "the situation, when training of observers is carried out by those who are to be observed, cannot but cause doubts". Against the background of this statement, the reproach against Election Commissions, that the members of the “Golos” Movement are not involved in the training of members of the PECs, looks illogical. We believe that the involvement of Election Commissions of the constituent subjects of the Russian Federation, that carry out their activities on a permanent basis, that is, professionally, in the training of any participants of the electoral process, is justified.
Based on the norms of Federal legislation, an observer may be in the polling station, get acquainted with the lists of voters, observe the issuance of ballot papers to voters, the counting of votes and the drawing of a Protocol on the results of voting, appeal against the decisions and actions (inaction) of the Election Commission where he\she is sent to, directly to the parent Election Commission or to the court, as well as exercise a number of other powers.
Hence, observers first and foremost monitor the work of the PECs, as well as interact with members of Election Commissions. Participation of Election Commissions of constituent subjects of the Russian Federation in training of observers is an effective way to ensure constructive interaction between members of the PECs and observers. In turn, there is a question about the goals posed by the authors criticizing these principles on the observers training.
It should be noted that experts of the Movement for the protection of the rights of voters "Golos" have done a lot of work on a voluntary basis over a short period of time, during which an attempt was made to assess the compliance of the stage of nomination and registration of candidates for the post of the President of the Russian Federation with "the principles and standards of free and equal elections".
As noted in the Report, "the expert group receives information from the media, from the participants and organizers of the elections, from public observers and voters who personally inform the representatives of the movement during the campaign and through the "Map of violations" Internet Service. Thus, the analyzed information is based on unverified messages, comprising those from anonymous Internet users, including, probably, the ones politically engaged and having goals far from the principles of objectivity. The Report was signed by three persons. It is not surprising that the findings and assessments of such a large-scale election campaign obtained in short time, involving millions of electoral organizers and participants in large-scale elections, obtained in such conditions and a short period of time, contain a number of erroneous judgments that can hardly impartially characterize the course of the elections.
It should also be emphasized that most of the experts ' conclusions are based on subjective assessments of the norms of the current electoral legislation and not on the results of generalization of its application. At the same time, the expert group does not analyze the norms of legislation in the context of the Constitutional Court of the Russian Federation decisions, international practice, legislation of other democratic countries, which makes it possible to doubt the impartiality of the assessments contained in the Report. However, the information contained in the Report will be used by Central Election Commission of the Russian Federation in the course of analyzing the results of the election campaign and developing proposals for improving the electoral legislation.