"Наши мертвые нас не оставят в беде.
Наши павшие - как часовые"
To the judge of the Constitutional Court
of the Russian Federation
Nikolay S. Bondar
Federal State Research Institution
INSTITUTE OF LEGISLATION AND COMPARATIVE LAW AFFILIATED TO THE GOVERNMENT OF THE RUSSIAN FEDERATION
34 Bolshaya Cheremyshkinskaya ul.
Tel./fax: (495) 719-76-02, (495) 719-73-02
06.11.2012, № 01-17/39
To № 1892 as of 19.10.2012
Please find enclosed the expert opinion in response to your inquiry № 1892 as of 19.10.2012 concerning the issues raised by claimants O.O.Andronova, A.V.Andronov, V.G.Belyakov et al. in respect of violation of their constitutional rights by particular provisions of current civil procedure and electoral legislation in relation to court protection of citizens’ electoral rights and repeal of decisions on the election result
Enclosure: 5 pages.
Interim director V.I.Lafitskiy
Помазанский А.Е. 8-499-724-20-41 Вх. № 2712
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on the issues raised by claimants O.O.Andronova, A.V.Andronov, V.G.Belyakov et al. in respect of violation of their constitutional rights by particular provisions of current civil procedure and electoral legislation in relation to court protection of citizens’ electoral rights and repeal of decisions on the election result
In their claims O.O.Andronova, A.V.Andronov, V.G.Belyakov et al. raise the issue of violation of their constitutional rights by provisions of section 1 art.259 of the Civil Procedure Code of the Russian Federation (hereinafter CPC), subarticles 2 and 3 art.77 of Federal Law as of June 12, 2002 № 67-ФЗ “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation”. On the claim in question we consider it necessary to specify the following.
1. Art. 259 of the CPC, as well as subarticle 10 art. 75 of the Federal law “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation” specify a wide range of persons who have the right to resort to court to have their violated electoral rights protected. According to the abovementioned provisions such claim can be filed by voters, candidates, their representatives, electoral associations, their representatives, political parties, their regional branches, other public associations, watchers, prosecutors, and electoral committees. At this the current Russian legislation differentiated the range of persons who can take legal recourse according to the subject matter of the claim, as well as the terms of filing a claim according to the subject matter of the claim and stage of the electoral process. For example, voters cannot take legal recourse to repeal the actions of respective electoral committees in respect of defining the election result on the territory of a specific electoral district on the basis that the abovementioned decisions
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do not directly affect rights, liberties and legitimate interests of the claimants. Such claims can only be filed by political parties and other electoral associations who have registered their party ticket in the same electoral district, candidates registered in the same electoral district, electoral committees who have registered the candidate or the party ticket.
2. The Constitutional Court of the Russian Federation has several times pointed out that the right to elect (active electoral right) is one of the basic civil rights and an essential element of a citizen’s legal status in a democratic society.
According to the Constitution of the Russian Federation free elections are the highest direct manifestation of the power of the people (art. 3, section 3); citizens of the Russian Federation are involved in management of the state affairs both directly and through their representatives, including the right to elect and to be elected to state government authorities and local authorities (art. 32, sections 1 and 2); the abovementioned rights in the Russian Federation as a democratic state governed by the rule of law are recognized and guaranteed in accordance with generally recognized rules and principles of international law on the basis of constitutional principles of equality of all before the law and trial and equal rights (art. 1, section 1; art. 2; art. 17, section 1; art. 19, sections 1 and 2).
Herewith enforcement of the right to elect and to be elected provided for in art.32 of the Constitution of the Russian Federation in respect of voters shall not reduce itself only to the voting procedure on the polling day but stipulate other guarantees of enforcement of this right at different stages of electoral process. In its Ruling as of November 14, 2005 № 10-П which evaluated the provisions of subarticle 5 art.48 and art.58 of Federal Law “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation”
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the Court states the direct relation between the election campaign and funding, which according to its purpose acts as a mechanism of enforcement of the right to carry out election campaign not only by electoral associations and candidates, but by voters themselves. Being inseparable, the two abovementioned electoral institutions are a guarantee of enforcement of the right to elect and to be elected provided for in art.32 of the Constitution of the Russian Federation. For example, in the Ruling considered it is in particular stated that “citizens of the Russian Federation, holders of active electoral right, cannot be considered as only an object of information support of elections; in the elections process they can act so as to actively state their pre-election position and persuade other electors to vote according to such position – for or against specific candidates, or to express negative attitude to all candidates participating in the election. If citizens were deprived of the ability to cay out election campaigns or had no legal guarantees of its implementation it would mean in essence a denial of right to virtually influence the electoral process, and the electoral process itself would be reduced to poling”. Hereafter the Constitutional Court states that “ normative content of the right to election campaign which embodies voters’ interests directed at forming personal composition of an elective state government body includes the power of members of the electoral process, including voters, to carry out election campaigns with an aim to persuade others to vote at elections n a definite way”.
3. Recognizing the fact, the procedure of enforcement of the right to elect and to be elected to state government bodies and local authorities provided for in art 32of the Constitution is not reduced to
participating in voting; the state in the person of the federal lawmaker can and in essence shall define the procedure and conditions of enforcement of the citizens’ active and passive electoral right, including the procedure of contesting the results of the election taking into consideration provision on enforcement of rights of all participants of the electoral process. Meanwhile, in respect of solely proportional representation system elections such right resides only in political parties which nominated their party tickets for respective election. Notwithstanding the fact that activity of political parties, connected directly to organization and functioning of public (political) power, is a necessary representative democratic institution which provides for citizens’ participation in the political life of the society, there shall be legal guarantees of enforcement of both passive and active electoral right in the case of proportional representation system. At present the possibility to protect the violated electoral rights of citizens by way of submitting a claim to the competent court to appeal the actions of respective electoral committees in terms of defining the voting outcome depends solely on a respective decision taken by a political party. Thus, in section 1 art. 46 of the Constitution of the Russian Federation there is a limitation of right to judicial protection of rights and liberties, which is inconsistent with criteria of limitation of rights stipulated in section 3 art 55 of the Constitution of the Russian Federation, under which rights and liberties of a person and a citizen can be limited by the federal law only to the extent necessary for protection of the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, maintaining defense of the country and security of the state.
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Examination of foreign experience of regulating relations in respect of the procedure of contesting the results of elections shows that as a rule regardless of what type of electoral right of a citizen was violated, whether active or passive, both voters and candidates have a right to file a claim with court to contest validity of elections and their results.
Therefore considering the abovementioned section 1 art.259 of the Civil Procedure Code of the Russian Federation and subarticles 2 and 3 art.77 of Federal Law as of June 12, 2002 № 67-ФЗ “On Basic Guarantees of electoral rights and right to participate in referendums for citizens of the Russian Federation” shall be declared inconsistent with art.2, sections 1,2,3 art.15, sections 1 and 2 art. 32, art. 55 of the Constitution of the Russian Federation to the extent that the abovementioned provisions prevent voters from effectuating legal protection of their rights in respect of repeal of the decisions on election results.
Head of Constitutional Law
Head of Civil Law and Procedure Department
Head of Department of Constitutional and Administrative Law of Foreign States