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To the judge of the Constitutional Court
of the Russian Federation
Nikolay S. Bondar
1 Senate sq.
St. Petersburg 190000
In response to your inquiry ¹ 1695 as of 18.09.2012 concerning expert opinion on the issues raised by the claimants in respect of violation of their electoral rights we hereby provide the following information.
The opinion has been prepared by Doctor of Legal Sciences, professor, Chairman of the Department for Constitutional and International Law at the Federal State Budget Educational Institution of Higher Professional Education “Altai State University” Valery Valentinovitch Nevinsky together with assistant professor of the abovementioned Department Candidate of Legal Sciences Alexey Viacheslavovitch Dolzhikov. Please find below the experts’ opinions in their versions, which are in general similar, to a certain extent, and complete and enlarge each other.
First of all two basic ideas should be clarified. The first is that however debatable the issue of popular sovereignty in a modern state is (“paper fiction”, “everyday reality”; displays itself only during referendums, plebiscite, elections, mass spontaneous actions) the constitutional law in most countries acknowledges the idea of popular sovereignty as one of the basic principles of organization of state authority in society. Herewith the essence of popular sovereignty displays itself in that form the one hand, the people (“people of the state”) acts as a source of state authority, and on the other hand
making decisions through the legal procedure it acts as a kind of a state body.
For the purpose hereof under the people we understand the body of citizens with electoral legal personality, expressing the integrated declaration of will. What is meant here is expressly integrated nature of individual declarations of will of citizens which fuel the people’s sovereignty as a potential characteristic of popular governance in respect of organizing people’s life.
Therefore, the whole of organized public associations, including political parties, cannot be a direct source of popular sovereignty. Otherwise the state power would originate not from the people but separate “sovereign” associations. This may be acceptable, but only for a totalitarian state based on the idea of “one leader, one party, one people”.
(Note: a 2005 survey conducted by VCIOM (Russia Public Opinion Research Centre) on the eve of the Constitution Day when asked who according to the Russian Constitution is sovereignty holder and a source of power 55% of the polled said it was the President, 12% - the Parliament, 1% - the God, 13% found it difficult to answer, and 19% said it was the people - No comments).
The second idea is that the Constitution of the RF contains provisions widely spread in the theory and practice of constitutionalism that the people exercise their power both directly and through the state bodies and local authorities (art.Ç (section 2)).
Among all state bodies a special place is held by the Russian legislatures, which are the Federal Assembly of the
Russian Federation and assemblies of deputies of separate constituent entities of the Russian Federation. The Russian Constitution defines the abovementioned legislatures as representative bodies as well (art.66 (paragraph 2), art.94), which is the bodies representing the people (aggregate popular will).
The growing role of different organized public associations, including political parties, in the political system of modern states, including participation in forming state government bodies and their direction towards adopting certain decisions, and in some cases even including organizational and functional intertwining of respective state government bodies and public associations, has to some extent transformed the notion of popular sovereignty and related principle of popular representation, without having annulled its formal legal and practical meaning.
As a particular case or increasing the role of political parties we can consider transformation of political parties into subjects of electoral process (voting rights), including by means of nominating candidates for legislatures in simple majority system and party tickets in proportional representation system. Three aspects shall be considered in this respect.
The first is that from the legal standpoint the people (electorate) does not loses its sovereignty and still has its representation in state government in the form of elected state government bodies (first of all, legislative (representative) authorities which enforce its will).
The second is that political parties nominating their candidates for elective legislative positions or presenting their arty tickets are not
state power representative of the people (electorate). Not being representative of the people in the meaning of the state law, they at the same time perform two functions in respect of the electorate: they enhance formation of integrated political will of the electorate and express this will as a public law mediator between the electorate and respective state government authorities, including legislative (representative) bodies.
The third is that being the subjects of the electoral process, voting citizens and duly registered political parties have specific electoral rights in accordance with their Constitutional and legal role in the electoral process. At this the electoral rights of the people (under the Russian electoral law it is the right to elect and to be elected and other voting rights) act as the basic (first) level of electoral rights, exercising which formation (legalization) of state government bodies is effectuated. In accordance with these rights the law shall provide for a protective mechanism to be used by voting citizens to protect their interests which originate directly from electoral rights of citizens stipulated in the law.
Political parties participating in the process which nominate candidates for legislatures also have specific electoral rights (yet they do not enjoy the active and passive electoral rights). These electoral rights are conditioned by the objective of political parties (enhancing formation of political will of the electorate and expressing this will as a mediator between the electorate and respective state government body).
Political parties electoral rights form a separate group of electoral rights defined by a necessity to perform electoral activities stipulated by the law. Accordingly, political parties have a right for legal protection of their interests, which are separate form organizational and functional standpoints from interests on voting citizens.
Opinions on specific issues.
1. Does violation of electoral law in vote counting which resulted in incorrect definition of the electoral outcome lead to violation of electoral rights of only political parties or the electoral rights of citizens, i.e. active electoral right?
The abovementioned violation results firstly in the violation of active voting right of citizens and secondly, political parties (electoral associations) participating in elections.
Based on the whole constitutional idea of popular sovereignty (see above) it can be seen that electoral rights of citizens, including active electoral rights, are primary in the course of counting of votes and defining the electoral outcome. We should agree with the authors of the Comments to the Constitution of the Russian Federation (under the editorship of V.D.Zorkin -Ì.: Norma: ÈÍÔÐÀ-Ì., 2011.p.293) that the “Constitution of the RF regulates the electoral system first through electoral rights of citizens, the latter thus being granted a priority over, for example, political parties, electoral commissions or elective state government bodies”.
2. Is counting of votes (and definition of election outcome – V.N.) a matter of only passive electoral right or the active electoral right as well?
By reason o narrow definition of active electoral right by the federal legislation, which defines it as only casting ballots at a polling station on the polling day (subart.26 art.2 of the Federal Law “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation”.- See: Scientific and Practical Comments on the current Federal law / ed.by A.A.Veshnyakov.- M, 2007. p.59), it may see that counting of votes concerns only passive electoral right. However, the people have sovereignty. Its individual representative, i.e. a citizen, can participate in all stages of electoral process which concern them, including in counting of votes and defining the outcome of elections which concern them directly In case of violation or apparent violation of electoral rights of citizens at these stages they are entitled to submit to competent authorities to establish this violation and have certain actions taken by the state.
In our opinion, violation of electoral legislation in counting of votes which resulted in incorrect definition of elections outcome leads to violation of electoral rights of citizens in applying both simple majority and proportional representation systems. Otherwise we shall conclude that active and passive electoral rights, as well as other rights, belong only to parties as joint subjects of electoral legal relations or much more interestingly, only citizens who are members of such parties.
Another question is who can appeal apparent violations of electoral legislation? In simple majority system the right of appeal resides in both voting citizens and political parties nominating their candidates. In proportional representation system it is clear that the right of appeal is granted to political parties forming their party ticket. At this the right of appeal is effected by them in respect of electoral actions, including at the stage of counting the votes and defining the outcome of the election. Parties act as enforced subjects of electoral legal relations.
Appeal of definite electoral actions by voting citizens applies to proportional representation system as well, but only in respect of the stages which concern their interests. Correct counting of votes and objective definition of the outcome are of interest not only for political parties and candidates nominated by them, but also voting citizens, whose votes allow to rank candidates from specific parties to distribute seats in legislative (representative) bodies of power. In this respect we assume that voting citizens also have the right of appeal, including in respective courts, in respect of violations (apparent violations) or electoral legislation. It is evident that the federal law shall in this respect define electoral activities which in case of their violation can be appealed according to the legal procedure. Current legislation does not contain such specific definitions, which groundlessly constricts the sovereign rights of the people (electorate) to appeal electoral actions which violate their electoral rights.
3. Considering that voting citizens are not entitled to appeal in
court the results of the election as a whole, what tools do they have to appeal actions of respective electoral commissions to define the outcome of the elections on a specific territory (polling station, voting district)?
Considering the existing legislation rules, their interpretation and enforcement by general courts, none! Subarticle 3 art. 77 of the Federal Law “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation” provides that the court of respective level can repeal the decision by an electoral committee on the poll outcome, the election outcome on the polling station, territory, constituency… as well as in case of violation of the voting procedure and counting procedure, defining the election outcome, … other violations of electoral legislation, if such violations do not allow to define the real will of voters.
However, firstly, he law does not provide for the right of voting citizens to appeal actions of electoral committees of different levels in court “in case of violation of voting procedure and counting of votes, definition of election outcome”. Secondly, the Law stipulates that a competent court can repeal the decision of electoral committee in case of the abovementioned violations if such violations do not allow to define the real will of voters. Yet the Law does not describe what it means by impossibility to define the real will of voters. Moreover, we can assume that such violations must be large-scale, for example, concern interests of absolute majority or relative majority (in case more than two candidates or political parties participate) of voting citizens having taken part in elections at a polling station or electoral district. And if such violation does not concern interests of the majority, the court shall pay no attention o such violations or it may consider some legal consequences. But what can these consequences be? The Law keeps silence in this respect.
All in all we should admit that art. 77 of the Federal Law “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation” does not stipulate strict criteria on the basis on which one can conclude that a specific violation does not allow to define the real will of voters. Thus, at best a judge considering the case shall estimate the scale of apparent violations, to what extent these violations affect the popular will, and whether it is possible to define the real will in a specific violation or not. In the worst case scenario taking into consideration peculiarities of formation of courts of general jurisdiction, judges without excessive procedural actions protect the results of the elections together with dominating political powers, thus annihilating objective constitutional right of citizens to elect and to be elected, the right enforcement of which is possible from the point of view of formal logics and formal law, starting with exercising the right to register as a voter to the right of control over definition of election results, within the framework of single electoral process.
4. Does the level of elections influence the possibility of exercising the right of citizens of appeal in court the results of elections?
Largely no. However, a unified approach is not applicable here, in particular, due to necessity to weigh the scale of violations, other quantitative and qualitative characteristics of the extent of violations (at polling stations, another territory).
5. Do all subjects indicated in section 259 the Code of Civil Procedure (CCP) of the Russian Federation which are involved into the electoral process have in all cases the right to appeal the results?
All. But the federal lawmaker, evidently not only in the basic Federal law but in the CCP as well shall stipulate the conditions of court appeal of the results of elections by separate subjects. It is necessary to eliminate the ambiguity (in a certain sense, a contradiction) of the provisions of art. 77 of the Federal Law “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation” and art. 259 of the CCP of the RF.
Another approach (which is present) would mean inequality of subjects of court appeal and violation of the notion of symmetry of limitation of constitutional rights.
1. Procedural capacity to appeal election outcome residing not only in electoral associations, but in individual voters. Legal position of courts of general jurisdiction concerning claims is that decisions of electorate committees contested concern only the rights of political parties and not electoral rights of citizens. In this case courts of general jurisdiction in fact limit the right of remedy of individuals (voters) in cases about defining the result of elections, thereby acknowledging associations (electoral associations) as the only holder of such right. In essence the main constitutional legal issue in such cases is deciding whether individual voters have procedural capacity in these cases. To understand procedural capacity we can use comparative legal cases. In particular, in its ruling as of March 3, 1970 the US Supreme Court, including the zone of interest test into the procedural standing, emphasizes necessity to prove that the “interest the claimant wants to protect was presumably in the zone of interest regulated or protected by law or constitutional provisions considered herein”. Similarly, to prove procedural capacity of voters in court appeal of the results of election it shall be proved that such results are in legitimate interests of voters. The electoral legislation comprehensively specifies the procedure of defining the result of voting and elections in several chapters. It would be absurd to suppose that such substantive rules are addressed solely to political parties and exclude protective mechanisms. Furthermore, it shall be taken into consideration that “the right to be elected to state government bodies and local authorities (passive electoral right) … in its legal nature is individual and not collective” (Ruling of the Constitutional Court of the Russian Federation as of April 25, 2000)3. That is why passive electoral right of political parties shall not exclude individual voting rights, including possible appeal of the results of elections. In this case a line shall be drawn between procedural capacity which resides in voters applying to the court of general jurisdiction and the Constitutional
1 See Decision of United States Supreme Court from March 3, 1970 "Association of Data Processing Service Organisations, Inc. V. Camp" // United States Supreme Court Reports. 1970. Vol. 397. Ð. 153. URL: http://supreme.justia.co/us/465/513/ (last accesses data 25.09.2012)
2 Chapter IX “Guarantees of citizens’ rights in organization and implementing of voting, count of votes, participants of a referendum, defining the result of elections, referendum, and their publishing” of Federal Law as of June 12, 2002 ¹ 67-ÔÇ (revised as of May 2, 2012) “On basic guarantees of electoral rights and the right to participate in referendums for citizens of the Russian Federation”; Chapter 11”Count of electoral votes. Definition of outcome of voting. Definition of results of elections to the State Duma” of Federal Law as of May 18, 2005 ¹ 51-ÔÇ (revised as of May 2, 2012) “On lections of deputies to the State Duma of the Federal Assembly of the Russian Federation”
3 See Official Gazette of the Russian Federation 2000. ¹ 19. Art 2102.
Court of the Russian Federation. If in the latter case limitation of access of voters filing constitutional claim on these issues could be justified by necessity to maintain a filter on the way of large-scale check of constitutionality of laws, in respect of appealing election results in courts of general jurisdiction such ban can be viewed as infringement on constitutional right of voters for legal protection.
2. Normative content of constitutional electoral rights includes the right to participate in defining election results. To participate in solution of problems raised the issue of normative content of electoral rights is decisive . Federal Law as of June 12, 2002 ¹ 67-ÔÇ (revised May 2, 2012) ““On basic guarantees of electoral rights and the right to participate in referendums for citizens of the Russian Federation” defines the electoral right of citizens as “the constitutional right of citizens of the Russian Federation to elect and be elected to state government bodies and local authorities, as well as the right «to participate in nominating candidates, lists of candidates, in election campaigns, in monitoring elections, work of electoral committees, including definition of poll outcome and results of elections, in other electoral actions under the procedure stipulated by the Constitution of the Russian Federation, the present Federal Law, other federal laws, constitutions, laws of constituent entities of the Russian Federation (subarticle 28 paragraph 1 art. 2). Thereby the federal lawmaker defines constitutional rights only as active and passive electoral rights. All other rights in respect of elections, including possibility of the voters to participate in defining election results, will hence be on unconstitutional character. At the same time the Constitutional Court of the Russian Federation gives another interpretation of section 2 art.32 of the Constitution of the Russian Federation, acknowledging in fact constitutional legal character of the right for election campaign (paragraph 2 art.3 of the Ruling as of October 30, 2003 ¹ 15-Ï4; paragraph 6 art. 2 of the Ruling as of November 14, 2005 ¹ 10-Ï5). Following this the Constitutional Court of the Russian Federation may grant constitutional legal status the right of citizens to participate in defining results of elections as well (at least this is beyond doubt in respect of a claim by P.P.Serebryakov, a member of electoral committee with the casting vote right). Such capacity of the body of constitutional control is directly based on provisions of section 1 art.55 of the Constitution of the Russian Federation stipulating open nature of constitutional rights catalogue and possibility of other widely recognized rights. Otherwise the constitutional claim considered would have been rejected as inadmissible in this respect, as in such conditions n constitutional electoral rights of citizens would be involved, and the subject of constitutional consideration could only be infringement of right to judicial protection.
3. The right to judicial protection of voters enjoys increased protection and cannot be fully repealed. Even if the previous argument is not persuasive, the cases considered involve constitutional right of voters to judicial protection (art.46 of the Constitution of the Russian Federation). Herewith the right to judicial protection, according to the Constitutional Court itself, is an “absolute right” and shall not be limited. The Ruling as of March 16, 1998 states that it “belongs to the basic rights, and none of the goals listed in art.55 (section 3) of the Constitution of the Russian Federation can justify limitation of this right, which guarantees all other rights and liberties of a person and a citizen “6. In the Ruling as of July 6, 1998 the Court stated that the right of a person convicted to review of sentence (section 3 art. 50) “ has general character, and a federal lawmaker shall not limit it either in respect of scope of persons, type of sentence for review or any other circumstances”. Though these ratio decidendi cannot be interpreted literally as rights to judicial protection which shall not be limited in any way, it is also true that the right of legal resort is one of imperative rights with increased protection (i.e prohibition of torture, slavery). It is not accidental that in the international law there is a notion of human rights as jus cogens, i.e. imperative norms of common international law (art.53 of the Vienna Convention on the Law of Treaties 1969).
4 Official Gazette of the Russian Federation. 2003. ¹ 44. Art. 4358.
5 Official Gazette of the Russian Federation. 2005. ¹ 47. Art. 4968.
6 Official Gazette of the Russian Federation. 1998. ¹ 12. Art. 1459.
In particular, interpreting the International Pact on civil and political rights the Human Rights Committee includes in the imperative international legal norms such case as “deviation from basic principles of fair trial, including presumption of innocence” (art. È)8. Therefore voters’ to access to justice, being one of the basic principles of fair trial, including cases on defining the result of election, shall not at least be repealed or diminished (section 2 art. 55). According to the Ruling of the Constitutional Court of the Russian Federation as of February 2, 1996 a federal law “shall not repeal or diminish rights and liberties of a person and citizen or encroach upon their essence “9. Another notion of right to access to justice would dilute the essence of citizens’ voting rights.
Proportional representation system shall not deprive voters of their constitutional rights. The choice of electoral system undoubtedly lies in the competence of legislature. Hence to strengthen the multiparty system the lawmaker could only use proportional representation system in respect of electing deputies of the State Duma of the Federal Assembly of the Russian Federation. At the same time such legal regulation of electoral system shall take into consideration some constitutional principles and requirements. For instance, the Federal Constitutional Court of Germany in its decision as of April 10, 1997 emphasizes that “a lawmaker dealing with this regulation
7 Official Gazette of the Russian Federation. 1998. ¹ 28. Art. 3394.
8 See General Comment ¹ 29 as of July 24, 2001 “Deviation from human rights under fore majeure circumstances” URL: http://www1.un.edu/humanrts/russian/gencomm/Rhrcom29.html (last accesses data 25.09.2012)
9 Official Gazette of the Russian Federation (hereinafter OGRF). 1996. ¹ 7. Art. 701.
can choose simple majority or proportional representation system for elections to the German Bundestag; he can also join the two systems... At this, sentence 1 paragraph 1 art.38 of the General Law always demands “deputies” to be chosen. Besides the Constitution rules out only party elections” (See: Urteil des Zweiten Senats vom 10. April 1997, 2 BVF 1/95 [Uberhangmandate II] // BVerfGE. Bd. 95. S. 335 (349). URL: http://www.servat.unibe.ch./dfr/bv095335.html (last accesses date 25.09.2012) [Der Gesetzgeber darf in Ausfuhrung dieses Regelungsauftrags das Verfahren der Wahl zum Deutchen Bundestag als Mehrheitswahl oder als Verhaltniswahl gestalten; er darf auch beide Wahlsysteme miteinander verbinden ... Doch verlangt Art. 38 Abs. 1 Satz 1 GG stets, das "die Abgeordneten" gewahlt werden. Damit schliest die Verfassung eine blose Parteienwahl aus]). Therefore, even in case of using only proportional representation system the elections shall not result in making key decisions in this respect by political parties, which means that voters shall be subjects of electoral legal relations in respect of appealing election results and holders of respective electoral rights.
Professor, Doctor of Legal Sciences V.V.Nevinsky
Assistant professor, Candidate of Legal Sciences A.V.Dolzhikov