"Наши мертвые нас не оставят в беде.
Наши павшие - как часовые"
The Ministry of Education and Science of the Russian Federation
(MinObrNauki of Russia)
Federal State Budget Educational Institution
of Higher Professional Education
the Saratov State Academy of Law
20.11.2012 № 21-3/1304
To the judge of the Constitutional Court of the Russian Federation
Nikolay S. Bondar
Senate sq., 1
St. Petersburg, 190000
Dear Nikolay Semenovich,
Please find hereby enclosed the expert opinion prepared by the Department of Constitutional and International Law of the Saratov State Academy of Law in response to your inquiry of 25.10.2012 №1942.
Attachment: Expert opinion (10 pages).
Head of the Department
of Constitutional and International Law
of the Saratov State Academy of Law
Doctor of Legal Sciences, professor,
Honored Science Worker
of the Russian Federation Vladimir Т. Kabyshev
The expert opinion of the Department
of Constitutional and International Law
of the Saratov State Academy of Law
in response to the inquiry of the judge of the Constitutional Court
of the Russian Federation Nikolay Semenovich Bondar
of 25.10.2012 №1942 about
the constitutionality of individual articles of the Civil Procedure Code of the Russian Federation and
individual provisions of the current electoral
law of the Russian Federation related to the judicial protection of electoral rights of citizens and to judicial countermand of decisions about election results
On the subject matter in question one must mention the following:
1. The violation of the electoral law committed in the course of election night count and that caused incorrect definition of election results also entails the violation of both active and passive electoral rights of citizens. Why so?
In order to give an answer to this question one must judge from the systems analysis of the sense of the Preamble and articles 1, 2, 3 (paragraph 3), 15 (paragraph 4), 17 (paragraph 1,2), 18, 32 (paragraphs 1 and 2), 45, 46 (paragraphs 1 and 2), 47 (paragraph 1), 55 of the Constitution of the Russian Federation and a number of legal views expressed in the judgments of the Constitutional Court of the Russian Federation on the issues of electoral law realization.
According to paragraph 1 of article 1 of the Constitution of the Russian Federation, Russia is a democratic federal law-bound State with a republican form of government. This constitutional norm is an expression of the essence of this country; it determines the nature of the political and legal status of the country and of all other institutions of the country.
In order to answer the posed question one must take into consideration the constitutional sense of article 2 of the Constitution of the Russian Federation regarding the rights and freedoms of the man as the supreme value.
The constitutional definition of man's rights and freedoms as the supreme value emerges from the statements of universally acknowledged acts of international law:
2 the Charter of the United Nations of 1945, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights of 19.12.1966, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.
The recognition of man's rights and freedoms the supreme value permeates literally the whole scope of the Constitution of the Russian Federation. This is a constitutional reality that is to determine the practice of lawmaking and law enforcement.
The Constitution of the Russian Federation stipulates that the bearer of sovereignty and the only source of power in the Russian Federation is its multinational people that exercises its power directly, and also through the bodies of state power and local self-government; the supreme direct expression of the power of the people are referenda and free elections (article 3, paragraphs 1-3).
The sense of the Preamble and articles 3, 32 of the Constitution of the Russian Federation entails that the multinational people of Russia are the citizens of the Russian Federation. This essential specification means that the will of the people is universal, constant and it embraces all the spheres of social life with no exception.
According to the Constitution of the Russian Federation, in line with the referendum, free elections are the supreme direct expression of the power of the people; citizens of the Russian Federation have the right to elect and be elected to state bodies of power and local self-government bodies (article 3, paragraph 3; article 32, paragraph 2). These constitutional norms correspond to the provisions of the International Covenant on Civil and Political Rights, according to which every citizen shall enjoy the right and the opportunity, without any discrimination or unreasonable restrictions, to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot
, guaranteeing the free expression of the will of the electors (paragraph ‘b’ of article 25), and the Convention for the Protection of Human Rights and Fundamental Freedoms, stipulating that free elections shall be held so as to guarantee the free expression of the will of the electors (article 3 of Protocol #1).
Notably, article 21 of the Universal Declaration of Human Rights stipulates that 'the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures'.
When giving answers to the posed questions one must proceed from the essence of constitutional functions of the institution of elections: firstly, the elections are the fundamental institution of the constitutional system, of the Russian Federation; secondly, they are the institution of direct democracy, the supreme direct expression of the people's power; thirdly, in a legal sense, the act of election is the act of commitment of the people's right to exercise its power by this people (represented by elective body) to its representatives – the president, deputies, other elected officials; fourthly, it is a democratic means of reforming instances of public authority; fifthly, it is a legitimate means of reforming the system of public power, its institutionalization; sixthly, it is a mechanism for selecting and breeding political elite and statesmen; seventhly, it is a form of managing state issues; eighthly, it is a process of bringing up civic political and state awareness.
As carriers of the active electoral right, citizens of Russia have a right to actively stand upon their rights during the whole length of the electoral process, including the stages of fixing the results of elections and judicially challenging the actions of respective election committees that have established voting results over the respective territory. If the citizens were deprived of the opportunity to judicially challenge the aforementioned decisions, this would entail, in essence, their deprivation of the right to practically influence the course of electoral process, and such an electoral process would be reduced to a mere fact of casting a vote.
Granted by article 32 of the Constitution of the Russian Federation and being one of the inalienable rights of a citizen, the right of the citizens of the Russian Federation to elect and be elected to state bodies of power and local self-government bodies is individual by its legal nature. At the same time an important role in exercising this right is played by political parties who are the main collective participants of electoral process.
Political parties are incorporated into the process of relations of power and at the same time, since they are voluntary associations within civil society, they act as a necessary institution of representative democracy that ensures the citizens' participation in the political life of the society, the political interaction between the civil society and the state, the integrity and stability of the political system (Rulings of the Constitutional Court of the Russian Federation of 01.02.2005 №1-П, of 16.07.2007 №11-П and of 09.11.2009 №6-П).
The citizens of the Russian Federation, who exercise their active electoral right directly and who exercise their passive electoral right indirectly, through political parties, should have the opportunity to protect their electoral rights by judicial means if the electoral law has been broken during the vote count and if it has led to incorrect determination of election results.
Legal statements in defense of the right to elect and to be elected are, by their nature, claims arising from public law, and usually they affect the interests of a vast number of citizens, are of great social importance and require urgent solution due to the rigid timeframe of electoral process.
When defining the means and forms of judicial protection of the violated right, the lawmaker must safeguard the protection of both active and passive electoral right, as well as provision responsibility of electoral committees for illegal actions hindering the due exercising of the mentioned rights.
As the Constitutional Court of the Russian Federation has mentioned, according to the sense of articles 1 (paragraph 1), 3 (paragraph 3), 17 (paragraph 3) and 32 (paragraphs 1 and 2) of the Constitution of the Russian Federation in their interrelation, constitutional values connected with exercising electoral rights can come into a certain collision with each other, since the interests of particular electors that determine their voting in the course of elections do not necessarily agree with the public interest of forming instances of public authority. At the level of constitutional and legal status of the individual it is, on the one hand, the right of every citizen to take part in electing the representatives of the people in elected bodies of public power and to be elected as such a representative, and on the other hand, it is the right to judicially challenge the actions of respective election committees on establishing the voting results over certain territory; at the level of the overall institution of elections it is the formation of the instances of public authority and their representative and legitimate nature.
In its legal views, the Constitutional Court of the Russian Federation pointed out that the principle of proportionality should be adhered to during judicial protection of electoral rights of citizens. The principle of proportionality demands that in every specific case of electoral rights' violation a relevant way of vindication or compensation be used, this way taking account of the specific nature of these rights: although these rights are individual, they can be exercised in the course of electoral process that is aimed at the identification of the common will of the voters that have taken part in a ballot. However it must not lead to the resignation from using compensatory mechanisms for mitigating the effects of discovered violations and it must not release from responsibility the subjects of electoral right that have committed these violations of electoral rights, including the election committees (Ruling of the Constitutional Court of the Russian Federation of 15.01.2002 №1-П 'On the
constitutionality test of individual provisions of article 64 of the Federal Law 'On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum' and article 92 of the Federal Law 'On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation' on account of the application of the citizen A.M. Traspov').
A court judgment about the vindication of the violated passive electoral right cannot be interpreted as violating the active electoral right of citizens that took part in voting; in contrast, such a court judgment serves as a means of protection of this right. 'The judicial protection must be effective not only when a rights' vindication is discovered before the voting, but also afterwards, and, consequently, it does not exclude the judicial countermand of decisions about voting results, election results in order to ensure genuinely free elections as a means of vindicating the vindicated electoral right' (the Ruling of the Constitutional Court of the Russian Federation of 26.12.2005 №14-П 'On the constitutionality test of individual provisions of article 260 of the Civil Procedure Code of the Russian Federation on account of the application of the citizen Ye.G. Odiyankov').
The citizens' application to the court in order to judicially challenge election results is a form of constitutional assessment of elections as an accomplished act of direct declaration of will of the people. In this regard one must take into account that the election review can entail the destabilization of the function of representative democracy institutions and the countermand of acts of exercise of active electoral right.
The electoral law violation committed in the course of vote count and that has led to the incorrect determination of election results
primarily entails the violation of the active electoral right, since the passive electoral right exercise directly depends on the results of the active electoral right exercise. Therefore maintaining the consistent observation of the interests of electors as primary holders of electoral right acquires particular importance, as well as the exclusion of excessive concentration of electoral opportunities in hand of secondary holders of electoral right (political parties) .
Indeed, the empowerment of elected deputies is ultimately based on the will of electors, this will being expressed through the act of election by voting.
Based on the above stated, the provisions of paragraphs 2 and 3 of article 77 of the Federal Law of June, 12, 2002 №67-ФЗ 'On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum' and paragraphs 4 and 5 of article 92 of the Federal Law of May, 18, 2005 №51-ФЗ 'On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation' are inconsistent with paragraph 3 of article 3 of the Constitution of the Russian Federation.
2. According to legal views of the Constitutional Court of the Russian Federation that are to be taken note of in law-making and law-enforcement practice, the mere usage of different types of election systems, including the proportional one, 'does not say for the deviation from the principles of the universal, equal and direct electoral right with secret ballot and does not conflict with the Constitution of the Russian Federation and is compatible with the generally acknowledged principles and norms of international law', including those fixed in the International Covenant on Civil and Political Rights of 1966 (article 25) and the Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States of October, 7, 2002, according to paragraph 3 of article 1 of which the right of a citizen to elect and to be elected shall be laid down the constitution and/or laws, and the legislative regulation of the election procedures (election systems) shall not limit or abolish the universally accepted civil and human rights and the constitutional and/or legislative guarantees for their exercise, and shall not be discriminatory
(Ruling of the Constitutional Court of the Russian Federation of 07.07.2011 N 15-П 'On the constitutionality test of provisions of paragraph 3 of article 23 of the Federal Law 'On General Principles of Organization of the Local Self-Government in the Russian Federation' and paragraphs 2 and 3 of article 9 of the Law of Chelyabinsk Region 'On Municipal Elections in Chelyabinsk Region' on account of the application of the Plenipotentiary on Human Rights in the Russian Federation and citizens I.I. Boltushenko and Ju.A. Gurman').
Since the Constitution of the Russian Federation does not establish a particular type of election system (majority election system or proportional election system) and the choice of a system depends on the legislator, the type of the system used at elections shall not affect the opportunity of citizens to judicially challenge the actions of election committees that have established voting results over the respective territory.
3. When deciding the acknowledgment of the right of citizens to challenge the election results one must apply unified approaches regardless of the level of elections (federal, regional, municipal). According to the sense of articles 3 (paragraphs 2 and 3) and 32 (paragraphs 1 and 2) of the Constitution of the Russian Federation, the duty of the state to ensure the free expression of the will of the people correlates with electoral rights of the citizens of the Russian Federation by which they exercise their right to participate in managing state affairs both directly and through their representatives at all tiers of authority.
The constitutional nature of electoral rights, including their public legal elements, is to be reckoned by the federal legislator when establishing regulatory framework so as to ensure the adequate expression of the sovereign will of the multinational people over the whole territory of the Russian Federation.
A differentiated approach to acknowledging the right of the citizens to challenge the election results depending on the level of elections would entail the violation of the constitutional principle of the rule of the people (articles 1 and 3 of the Constitution of the Russian Federation), the unitary legal status of a man and a citizen over all of the territory of the Russian Federation (paragraph 2 of article 6 of the Constitution of the Russian Federation), the right of every citizen for the judicial protection of his/her rights and freedoms (paragraph 1 of article 46 of the Constitution of the Russian Federation).
4. In the context of ideological and political manifoldness and multiplicity of parties and on the assumption that the rights and freedoms of the man are guaranteed and observed, the free elections presuppose a state legal mechanism that shall provide citizens with equal opportunities for judicially challenging election results in order to protect their violated rights and to obtain genuine election results.
A different understanding of the given norm would entail the corruption of the constitutional principle of equal electoral right, including the equal legal protection of violated electoral rights and can be regarded as the infringement of the main body of electoral rights belonging to the citizens of the Russian Federation.
Unfortunately the current Russian legislation that makes it possible for the courts of general jurisdiction to treat violations of vote count and tally of votes as only affecting the interests of elected deputies and political parties, but not of ordinary voters, is a limitation of the rights of citizens.
It does not agree with the provisions of article 55 of the Constitution of the Russian Federation. The right of the citizen of the Russian Federation enjoying the electoral right to judicially challenge the results of elections (according to article 46 of the Constitution of the Russian Federation) is in no way aimed against the foundations of the constitutional system of the Russian Federation, let alone the rights and legitimate interests of other people.
The exclusion of the voters from the scope of persons that have the right to submit an application about protection of electoral rights (that is granted to them in part 1 of article 259 of the Civil Procedure Code of the Russian Federation is a direct violation of the constitutional principle of equality of electoral rights, which was repeatedly pointed out by the Constitutional Court of the Russian Federation (Rulings of the Constitutional Court of the Russian Federation of 23.03.2000 № 4, of 25.04.2000 № 7).
The considerations that we have expressed are to be fundamental for considering the applications of citizens O.O. Andronova, A.V. Andronov, V.G. Belyakov et cet. about the violation of their constitutional rights by individual provisions of the current legislation on the judicial protection of electoral rights and judicial countermand of decisions about election results by the Constitutional Court of the Russian Federation.
This expert opinion was prepared by the following members of the department: doctor of legal sciences, prof. Vladimir T. Kabyshev, doctor of legal sciences, prof. Tamara V. Zametina, candidate of legal sciences, assoc. prof. Valentina I. Gavrilenko, candidate of legal sciences, assoc. prof. Tatiana V. Troitskaya.
The Head of the Department
of Constitutional and International Law
of the Saratov State Academy of Law
Doctor of Legal Sciences, professor, Honored Science Worker
Vladimir T. Kabyshev, 19.11.2012