Постановление ЕСПЧ <Дело Давыдов и другие (Davydov and Others) против России> (жалоба N 75947/11) [англ.] Часть 4

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  1. Criminal law provisions

 

  1. Article 141 of the Criminal Code of the Russian Federation (the Criminal Code) proscribed interference with the free expression of the voters’ opinion in elections and with the functioning of electoral commissions. Articles 142 and 142.1 of the Criminal Code established, accordingly, criminal responsibility for falsification of ballot papers and other electoral documents and for falsification of the outcome of the elections. As it followed from the authoritative comments, while the offence of falsification of electoral documents could be committed by both electoral officials and private parties, the offence of falsifying election results could only be committed by members of electoral commissions and other persons who took part in the work of the commissions.

 

  1. Examples of relevant court practice submitted by the parties

 

  1. Examples submitted by the applicants

 

  1. The applicants submitted copies of five judgments of St Petersburg district courts which followed the same pattern as experienced in the present case by them and the SR. These judgments were rendered upon complaints lodged by the St Petersburg branch of SR and concerned the results of the elections of 4 December 2011 in several precincts in electoral divisions nos. 2, 4, 5, 8, 14 and 22, not covered by the complaints lodged by the applicants in the present case. In all those cases the courts dismissed complaints concerning alleged discrepancies between the “original” copies of the protocols obtained by the members of the precinct commissions and the final results, in view of procedural deficiencies in these “original” copies.

 

  1. Examples submitted by the Government

 

  1. The Government submitted records of over twenty criminal convictions issued by various district courts in Russia between 2010 and 2014. Most of these convictions concerned actions of members and chairpersons of PECs, whereby they had falsified electoral papers and the results of municipal and regional elections which had occurred between 2010 and 2014. The convictions under Article 142 (falsification of ballot papers and other electoral documents) sometimes mentioned participation of victims, namely voters whose electoral rights had been infringed; the convictions under Article 142.1 (falsification of election results) did not refer to victims.
  2. The Government also submitted seven judgments, finding the decisions of PECs and, in one case, the TEC, invalid, in whole or in part, in municipal, regional and federal elections held between 2011 and 2014. The complaints were lodged by members of the electoral commissions, candidates and observers. In addition, in one case in 2012 a justice of the peace in St Petersburg fined the chairman of a PEC for refusing to issue a copy of the final protocol to a member of the same commission.
  3. In their additional observations of 22 May 2015 the Government submitted statistics on the total number of complaints on electoral matters submitted to and reviewed by courts between 2009 and 2014. This document indicates that every year 3,000 to 3,819 complaints on electoral matters were lodged with the courts. In each of those years 25% to 43% of complaints were allowed. In 2012 35% of all the electoral complaints lodged with the courts were allowed.

 

III. Relevant international documents

 

  1. Code of Good Practice in Electoral Matters

 

  1. The relevant excerpts from the Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“the Venice Commission”) at its 51st and 52nd sessions (5 – 6 July and 18 – 19 October 2002), read as follows:

“GUIDELINES ON ELECTIONS

  1. Principles of Europe’s electoral heritage

The five principles underlying Europe’s electoral heritage are universal, equal, free, secret and direct suffrage. Furthermore, elections must be held at regular intervals.

  1. Free suffrage

3.2. Freedom of voters to express their wishes and action to combat electoral fraud

  1. polling stations must include representatives of a number of parties, and the presence of observers appointed by the candidates must be permitted during voting and counting;

xii. counting should preferably take place in polling stations;

xiii. counting must be transparent. Observers, candidates’ representatives and the media must be allowed to be present. These persons must also have access to the records;

xiv. results must be transmitted to the higher level in an open manner;

  1. the state must punish any kind of electoral fraud.

  1. Procedural guarantees

3.1. Organisation of elections by an impartial body

  1. An impartial body must be in charge of applying electoral law.
  2. Where there is no longstanding tradition of administrative authorities’ independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level.
  3. The central electoral commission must be permanent in nature.
  4. It should include:
  5. at least one member of the judiciary;
  6. representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters.

  1. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis (see point I.2.3.b).
  2. The bodies appointing members of electoral commissions must not be free to dismiss them at will.
  3. Members of electoral commissions must receive standard training.
  4. It is desirable that electoral commissions take decisions by a qualified majority or by consensus.

3.2. Observation of elections

  1. Both national and international observers should be given the widest possible opportunity to participate in an election observation exercise.
  2. Observation must not be confined to the election day itself, but must include the registration period of candidates and, if necessary, of electors, as well as the electoral campaign. It must make it possible to determine whether irregularities occurred before, during or after the elections. It must always be possible during vote counting.
  3. The places where observers are not entitled to be present should be clearly specified by law.
  4. Observation should cover respect by the authorities of their duty of neutrality.

3.3. An effective system of appeal

  1. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible.
  2. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals.
  3. The appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). Neither the appellants nor the authorities should be able to choose the appeal body.
  4. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections.
  5. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned.
  6. All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections.
  7. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance).
  8. The applicant’s right to a hearing involving both parties must be protected.
  9. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions.

EXPLANATORY REPORT

3.2.2.4. Counting

  1. The votes should preferably be counted at the polling stations themselves, rather than in special centres. The polling station staff are perfectly capable of performing this task, and this arrangement obviates the need to transport the ballot boxes and accompanying documents, thus reducing the risk of substitution.
  2. The vote counting should be conducted in a transparent manner. It is admissible that voters registered in the polling station may attend; the presence of national or international observers should be authorised. These persons must be allowed to be present in all circumstances. There must be enough copies of the record of the proceedings to distribute to ensure that all the aforementioned persons receive one; one copy must be immediately posted on the notice-board, another kept at the polling station and a third sent to the commission or competent higher authority.
  3. The relevant regulations should stipulate certain practical precautions as regards equipment. For example, the record of the proceedings should be completed in ballpoint pen rather than pencil, as text written in pencil can be erased.
  4. In practice, it appears that the time needed to count the votes depends on the efficiency of the presiding officer of the polling station. These times can vary markedly, which is why a simple tried and tested procedure should be set out in the legislation or permanent regulations which appear in the training manual for polling station officials.
  5. It is best to avoid treating too many ballot papers as invalid or spoiled. In case of doubt, an attempt should be made to ascertain the voter’s intention.

3.2.2.5. Transferring the results

  1. There are two kinds of results: provisional results and final results (before all opportunities for appeal have been exhausted). The media, and indeed the entire nation, are always impatient to hear the initial provisional results. The speed with which these results are relayed will depend on the country’s communications system. The polling station’s results can be conveyed to the electoral district (for instance) by the presiding officer of the polling station, accompanied by two other members of the polling station staff representing opposing parties, in some cases under the supervision of the security forces, who will carry the records of the proceedings, the ballot box, etc.
  2. However much care has been taken at the voting and vote-counting stages, transmitting the results is a vital operation whose importance is often overlooked; it must therefore be effected in an open manner. Transmission from the electoral district to the regional authorities and the Central Electoral Commission – or other competent higher authorities – can be done by fax. In that case, the records will be scanned and the results can be displayed as and when they come in. Television can be used to broadcast these results but once again, too much transparency can be a dangerous thing if the public is not ready for this kind of piecemeal reporting. The fact is that the initial results usually come in from the towns and cities, which do not normally or necessarily vote in the same way as rural areas. It is important therefore to make it clear to the public that the final result may be quite different from, or even completely opposite to, the provisional one, without there having been any question of foul play.

  1. Procedural safeguards

3.1. Organisation of elections by an impartial body

  1. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results.
  2. In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organised by administrative authorities, and supervised by the Ministry of the Interior.
  3. However, in states with little experience of organising pluralist elections, there is too great a risk of government’s pushing the administrative authorities to do what it wants. This applies both to central and local government – even when the latter is controlled by the national opposition.
  4. This is why independent, impartial electoral commissions must be set up from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity.
  5. According to the reports of the Bureau of the Parliamentary Assembly of the Council of Europe on election observations, the following shortcomings concerning the electoral commissions have been noted in a number of member States: lack of transparency in the activity of the central electoral commission; variations in the interpretation of counting procedure; politically polarised election administration; controversies in appointing members of the Central Electoral Commission; commission members nominated by a state institution; the dominant position of the ruling party in the election administration.
  6. Any central electoral commission must be permanent, as an administrative institution responsible for liaising with local authorities and the other lower-level commissions, e.g. as regards compiling and updating the electoral lists.
  7. The composition of a central electoral commission can give rise to debate and become the key political issue in the drafting of an electoral law. Compliance with the following guidelines should facilitate maximum impartiality and competence on the part of the commission.
  8. As a general rule, the commission should consist of:

– a judge or law officer: where a judicial body is responsible for administering the elections, its independence must be ensured through transparent proceedings. Judicial appointees should not come under the authority of those standing for office;

– representatives of parties already represented in parliament or which have won more than a certain percentage of the vote. Political parties should be represented equally in the central electoral commission; “equally” may be interpreted strictly or proportionally, that is to say, taking or not taking account of the parties’ relative electoral strengths. Moreover, party delegates should be qualified in electoral matters and should be prohibited from campaigning.

  1. In addition, the electoral commission may include:

– representatives of national minorities; their presence is desirable if the national minority is of a certain importance in the territory concerned;

– a representative of the Ministry of the Interior. However, for reasons connected with the history of the country concerned, it may not always be appropriate to have a representative of the Ministry of the Interior in the commission. During its election observation missions the Parliamentary Assembly has expressed concern on several occasions about transfers of responsibilities from a fully-fledged multi-party electoral commission to an institution subordinate to the executive. Nevertheless, co-operation between the central electoral commission and the Ministry of the Interior is possible if only for practical reasons, e.g. transporting and storing ballot papers and other equipment. For the rest, the executive power should not be able to influence the membership of the electoral commissions.

  1. Other electoral commissions operating at regional or constituency level should have a similar composition to that of the central electoral commission. Constituency commissions play an important role in uninominal voting systems because they determine the winner in general elections. Regional commissions also play a major role in relaying the results to the central electoral commission.

3.2. Observation of elections

  1. Observation of elections plays an important role as it provides evidence of whether the electoral process has been regular or not.
  2. There are three different types of observer: partisan national observers, non-partisan national observers and international (non-partisan) observers. In practice the distinction between the first two categories is not always obvious. This is why it is best to make the observation procedure as broad as possible at both the national and the international level.
  3. Observation is not confined to the actual polling day but includes ascertaining whether any irregularities have occurred in advance of the elections (e.g. by improper maintenance of electoral lists, obstacles to the registration of candidates, restrictions on freedom of expression, and violations of rules on access to the media or on public funding of electoral campaigns), during the elections (e.g. through pressure exerted on electors, multiple voting, violation of voting secrecy, etc.) or after polling (especially during the vote counting and announcement of the results). Observation should focus particularly on the authorities’ regard for their duty of neutrality.

  1. The law must be very clear as to what sites observers are not entitled to visit, so that their activities are not excessively hampered. For example, an act authorising observers to visit only sites where the election (or voting) takes place could be construed by certain polling stations in an unduly narrow manner.

3.3. An effective system of appeal

  1. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.
  2. There are two possible solutions:

– appeals may be heard by the ordinary courts, a special court or the constitutional court;

– appeals may be heard by an electoral commission.

There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second.

  1. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.
  2. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.
  3. It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission, or where the powers of different courts – e.g. the ordinary courts and the constitutional court – are not clearly differentiated.

  1. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections.
  2. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded.
  3. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated.
  4. Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.”

 

  1. The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Election Observation Mission Final Report on the elections to the State Duma, 4 December 2011 (Warsaw, 12 January 2012)

 

  1. The OSCE summarised its findings as follows:

“The preparations for the 4 December elections were technically well-administered across the country, but the elections were marked by the convergence of the state and the governing party. Although seven parties ran, the prior denial of registration to certain political parties narrowed political competition. The contest was also slanted in favour of the ruling party. This was evidenced by the lack of independence of the election administration, the partiality of most media, and the undue interference of state authorities at different levels. This did not provide the necessary conditions for fair electoral competition. Despite the lack of a level playing field, voters took advantage of their right to express their choice.

During voting, election officials were observed to be dedicated and experienced and procedures were followed overall. However, the quality of the process deteriorated considerably during the count, which was characterized by frequent procedural violations and instances of apparent manipulation, including several serious indications of ballot box stuffing. Result protocols were not publicly displayed in more than one-third of polling stations observed. Throughout election day, observers also reported a number of instances of obstruction to their activities, in particular during count and tabulation.

The final election results were announced by the CEC on 9 December. A number of mass demonstrations took place across the country, linked to allegations of election day fraud that received broad publicity, including on the Internet.

The legal framework is comprehensive and provides an adequate basis for the conduct of elections. However, structurally, the legal framework is overly complex and open to interpretation, which led to its inconsistent application by various stakeholders, often in favour of one party over the others. Laws guaranteeing the right to peaceful assembly were in some cases applied restrictively, undermining contestants’ rights. Numerous amendments to the legal framework had been adopted since the previous elections. A number of recent changes improved certain elements of the electoral process, although the reduction of the parliamentary threshold to five per cent did not apply in these elections.

The CEC adopted detailed instructions to facilitate preparations for the elections. It held regular sessions and took most decisions unanimously, without debate. The process of adjudication of complaints by the CEC lacked transparency and did not afford the contestants effective and timely redress. The CEC has not complied with the legal requirement that all complaints must be acted upon and responded to in writing. Representatives of most political parties expressed a high degree of distrust in the impartiality of election commissions at all levels and questioned their independence from various state administration bodies.”

  1. More specifically, the OSCE reported on votes counting and appeals:

“XIV. ELECTION DAY

The voting process was assessed positively in 93 per cent of polling stations observed and procedures were followed, overall…

Party representatives were present in almost all polling stations visited. The majority of them were nominated by ER (85 per cent of visits), KPRF (75 per cent) and SR (59 per cent)…

The vote count was assessed as bad or very bad in every third polling station observed. This was mainly due to a poor organization, lack of transparency and serious departures from the counting procedures outlined by the CEC. Signatures of voters who voted were not counted in 42 polling stations and in 38 polling stations, the number of ballots issued for “mobile voting” was not recorded. In almost half of the observed counts, marked ballots were not shown to those present…

Twelve cases of extended breaks in the counting process were reported. In some instances, PECs interrupted the count, at times taking voting material out of sight of observers. Observers were restricted in their observation in 20 polling stations. In 7, they were expelled from polling stations during the count. Observers did not receive copies of result protocols in 21 polling stations observed and in almost half of polling stations visited, signed protocols were not posted publicly.

The tabulation was assessed negatively in 17 of the observed TECs. In 41 cases, observers reported that the facilities for the reception and recording of results were inadequate. The organisation of data collection was evaluated as bad or very bad in 11 observer reports. Insufficient transparency of the process was noted in 24 cases. The submitted PEC protocols were not always filled in. They were also not signed with a pen in 21 cases and did not contain all required figures in 32 cases. In addition, some procedural irregularities were noted, such as a failure to enter the data from PEC protocols into TEC summary tables in 10 of the observed TECs.

 

  1. Announcement of results

 

…The CEC announced preliminary results on the day after the elections. The final results were approved on 9 December. The CEC posted tables with summaries of final results from all election commissions on its website, which enhanced the transparency and made independent verification by stakeholders possible. The reported turnout was 60.21 per cent. ER received 49.32 per cent of the votes and won 238 seats, KPRF – 19.19 per cent and 92 seats, Just Russia [SR] – 13.24 per cent and 64 seats, and LDPR – 11.67 per cent and 56 seats. Other lists did not surpass the thresholds; YA [Yabloko], which received 3.43 per cent of the votes however, will now qualify for state funding.

One CEC member objected to the official final results announced and submitted a dissenting opinion. He stated that elections did not allow for the free expression of the will of voters and were characterized by an unequal treatment of contestants by different government bodies in favour of ER. He also highlighted that there were numerous violations of the law during the counting process. Finally, he stated that, despite repeated requests, he was not given copies of all 33 dissenting opinions attached to the summary protocols of SECs.

One other non-voting CEC member from KPRF suggested that, given the number of reported violations during these elections, the CEC adopt a resolution to dismiss the CEC chairperson. The suggestion was rejected. LDPR and SR representatives at the CEC also severely criticized the conduct of State Duma elections. ”

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