VOTER – IS HE A TREMBLING CREATURE, OR HAS HE THE RIGHT?
24.11.2013
This article looks into the recent Constitutional Court
case on the right to free elections in Russia. The author
and a litigator in this case, concisely explains the
meaning of a recent judgment of the Russian Constitutional
Court of 22 April 2013 which “returned” to voters the right
to challenge infringements of their electoral rights and
directly applied the Convention for the Protection of Human
Rights and Fundamental Freedoms as well as considering the
“European consensus” on the matter of free elections.
Dr. Anton Burkov, Ph.D (Cantab), candidate of legal science, LL.M (Essex), Chair of the European and Comparative Law Department of the University of Humanities, representative of Mr. Timoshenko before the Constitutional Court.
It all started with the Russian State Duma elections of December 4, 2011, when there were reports of irregularities in the counting of votes in many district election commissions throughout Russia. After the voting was over and the ballot deposition boxes were closed every district election commission was supposed to count the votes and pass the numbers to the State Automatic System "Vybory" (counting system). However, official observers noticed that numbers recorded by the district election commissions in final protocols and the numbers reported in the State Automatic System "Vybory" differed dramatically.
These irregularities led the voters, observers and members of district election commissions to challenge the election results in the Russian courts of general jurisdiction. However, the courts did not grant them standing to pursue their complaints. All the courts of general jurisdiction up to and including the Supreme Court, as well as prosecutors, election commissions, political parties which participated in hearings before courts as defendants and third parties, were of the opinion that the way votes were counted or transferred to the unified system of counting only concerned political parties which participate in the elections, as these parties secure seats in the parliament according to the number of votes they receive. The courts ruled that individual voters’ rights to participate in the election had not been affected, as their right to participate only lasts until the submission of their voting ballots to the voting boxes. Consequently, the courts ruled that only the political parties had standing to challenge the election results.
The voters, observers and members of election commissions from St. Petersburg and Voronezh region did not agree with such a interpretation of law and turned to the Constitutional Court asking if the Supreme court’s interpretation of civil procedure law and electoral law was in line with the Russian Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Interestingly, the text of the challenged laws did not contain such a narrow interpretation of the legal standing of voters. It was interpreted narrowly by the courts, including the Russian Supreme Court, election commissions and prosecutors.
At the Constitutional Court’s hearing the representatives of all the governmental organs involved in the case (representatives of the President, of the lower and upper houses of the Parliament, the Supreme Court, the Ministry of Justice, the Procurator’s office) argued that a voter has a right only to the mechanical action - to drop the ballot in the ballot box. Anything more was solely the jurisdiction of election commissions and political parties. They argued that voters have a right to appeal to courts only if they were not given an opportunity to exercise the physical action of voting – dropping a ballot into the ballot box or if they were not registered as voters or not given a ballot to fill in.
Voters and their representatives, who (we must mention) were unanimously supported by the academic community, argued the opposite point of view - without the right to challenge election fraud in the courts there is no right to free elections in a democratic country. It would have been strange if the Constitutional Court has ruled that the voters’ rights are finished at the ballot box.
On April 22, 2013 the Constitutional Court found that the voters have the right to challenge the results of an election where there is a potential violation in the counting of votes. As it was expected, and relying on the Russian Constitution, the European Convention, and the “European consensus”, the Constitutional Court did not correct the law itself, it amended the practice of law enforcement. However certain exceptions were put in place which diminish the value of this judgment and are likely to limit its application in cases involving possible infringement of electoral rights.
What are those exceptions and how one can enforce the right to free election?
First, a voter will have standing to appeal a voting irregularity to a court only if the violation took place in his/her election district. According to the Constitutional Court’s judgment, violations in one district, even if they took place during nation-wide elections, do not concern voters in other districts.
Second, observers and members of the election commissions cannot challenge violations in counting. Now we must ask ourselves how a regular voter can learn about violations in counting of votes? Only observers and members of election commissions have access to protocols containing the results prior to their submission to the Vybory. There is no mechanism of transfer of such information to a voter. One exception exists when an observer is a voter at the same voting district.
Finally, the most important limitation to voting rights is in the ruling of the Constitutional Court that the State Duma must establish the procedure by which a voter can file a case on violation during elections. However, in the Constitutional Court hearing, the Permanent Representative of the State Duma repeatedly argued that “the right to free election is the right to vote only, the rest is a political interest”.
As much as we would not like to count on the European Court of Human Rights, we do not have a choice — all the domestic remedies have been exhausted. There is not even a dissenting opinion of a judge of the Constitutional Court.
All the case materials in Russian http://sutyajnik.ru/cases/520.html
The judgment of the Constitutional Court http://sutyajnik.ru/documents/4485.pdf
