Denial
of Legal Remedies
In the Former
Yugoslav Republic of Macedonia,
prior to early parliamentary elections scheduled for June, 2008, Parliament
dissolved itself without addressing changes in the legal framework for
electoral complaints and appeals. At the
time, a reorganization of the judicial system had already begun, leading to the
formation of a new Administrative Court. This Court would preside at the lower level
over appeals from decisions by administrative agencies and at the higher level
assume jurisdiction over administrative appeals that formerly had been directed
to the Administrative Division of the Supreme Court.
Macedonian elections are
intensely competitive, on both sides of the divide between the majority ethnic
Macedonians and substantial minority ethnic Albanians. On the ethnic Macedonian side, there is an
intense and longstanding struggle between the main nationalist (“VMRO-DPMNE”)
and social-democratic (“SDSM”) parties.
During past elections, a SDSM “look-alike” party referred to as “SDPM”
had been permitted to register candidates with names strikingly similar to
leading SDSM politicians. This occurred
again in 2008, with evidence emerging that some of the so-called “candidates”
had not consented to be nominated; so the SDSM duly appealed registration of
the bogus party’s candidate list by the State Electoral Commission.
Since the Administrative
Court was not yet organizationally prepared to receive cases
of this type on appeal from the Commission, the SDSM case was heard in the
Supreme Court. That Court indicated that
it no longer had regular administrative-appellate jurisdiction, it could only
look to the Electoral Code – and not general administrative law – in
determining whether a remedy was available to the SDSM. But the Code only specifically provided for
appeals against decisions of the Commission by political parties which had
sought registration for their candidate lists and were denied, and not by
parties attempting to appeal from the registration of the lists of other
parties. So the Court found there was no
legal remedy available.[1]
Ineffective Legal Remedies
The difficulties resulting from an unclear
and incomplete legal framework regarding remedies for electoral violations were
also evident during the 2008 parliamentary elections in FYR Macedonia. [2] According to
international observers, election contestants had only limited access to
effective remedies and recourse to appeal for alleged violations prior to
election day, partially due to legislative inconsistencies but also due to a
narrow interpretation of the competencies of the complaint and appeal bodies.
Judges of the Primary and Appeals Courts were also found to be largely
unfamiliar with their role with regard to campaign violations.
With respect to campaign violations, the means of legal recourse were
limited and not fully described in law. The only relevant provision of the
Election Code enabling candidates whose rights are infringed – “by violating
and disturbing the opponents’ campaign” – allowed them to seek redress in the
relevant primary court (with right of appeal to the Court of Appeals). But the
type of action that could be submitted under this provision was undefined, as
were the classes of defendants (potentially including rival candidates or
campaign organizers, private persons, and perhaps even municipal or State
officials). While the words “preventing and disturbing the … campaign” are
exactly the same as the description in the Code of a misdemeanor, the article
did not indicate whether the form of action would be civil or criminal.
Several Primary and Appeals Courts contacted by the observers took
different approaches toward their role in the complaints and appeals process.
Some denied that they had any jurisdiction at all over election cases; others
indicated that misdemeanor proceedings could be brought (resulting in fines and possibly even compensation for
victims); while still others were open to considering civil actions seeking declaration that
campaign rights had been violated. No lawsuits were, however, ever brought against campaign
violations. All in all, the observers
found that the scope of judicial appeals available to election contestants had diminished
from previous elections, in part due to ongoing changes in judicial
jurisdiction over administrative appeals.
Frustration of Legal Remedies
Deficiencies in resolution
of disputes were a key focus of international concern and domestic criticism in
connection with the Georgian
elections in 2008.[3] During both presidential
and parliamentary elections, relatively few complaints and appeals were
submitted during the election campaign; and those which were pursued were
generally unsuccessful. During both elections, however, a very large number of
complaints were submitted – primarily by accredited non-governmental (NGO)
observers and to a lesser extent opposition parties – concerning the conduct of
voting and counting, and adoption of protocols, by Precinct Election
Commissions (PEC). Few such complaints were satisfied by higher-level election
commissions or the courts, and most complaints were rejected on technical
grounds.
Presidential Elections
During the extraordinary
presidential elections in January 2008, relatively few complaints were filed
prior to Election Day. According to the final report of the OSCE/ODIHR,
opposition parties and NGO’s attributed this to lack of trust in the
impartiality of election administration and the courts. Also, election
administration at all levels as well as the courts did not fully consider or
adequately address a considerable number of complaints. ODIHR reports indicate
that 31 appeals were submitted to the CEC and 19 cases to the Tbilisi City
Court (of which six were subsequently taken to the Court of Appeals). The main
subjects of these cases included misuse of state resources, vote buying, and
campaigning by public officials during their official duties.
After the elections,
however, a very large number – over 1,000 – complaints were submitted
concerning the conduct of voting and counting by the PECs, and some 400 appeals
were made to the relevant District Election Commissions (DEC). Only a small
number, 24, of further appeals were considered by the CEC to have been properly
submitted; and the CEC annulled the results at five PECs.
The results at eight additional PECs
were annulled by the courts.
Under the Election Code
provisions then in effect, the DECs did not have the authority to annul the
results at PECs, so even if the DEC
agreed with an appeal it had to be validated by the CEC. (If an appeal to a DEC
was unsuccessful, it had to be appealed directly to court and not to the CEC.)
The relevant provisions on
appeals (former Election Code Article 77.1-2) generally permitted appeals from
decisions of election commissions to be taken to the higher election commission
or the municipal court.However, the Supreme Court had developed a different legal
interpretation, communicated it to parliamentary and electoral officials, and instructed
judges of the appellate and district courts.
The interpretation was of
former Election Code Article 77.28, which created an exception to the dual
channel of appeal for appeals from the DECs concerning a PEC summary protocol
of results or the ordinance through which it was adopted. Under this doctrine,
such appeals had to be submitted to court after their denial by the DEC. Based on the maximum, “Special law derogates
general law”, the justices extended this rule to cover all such appeals – with
the result that the option of bringing appeals directly to the CEC was
eliminated.
Technically speaking, the
problem with the Supreme Court’s interpretation was that such maxims of
interpretation should only be applied when there is a contradiction among laws;
and no such contradiction existed in this case.
More worrisome, however, were the broader legal and political
implications of the Court’s actions. In
effect, the Court set the stage for a wholesale elimination of the appeal
rights of electoral participants; and it undermined the rule of law by
informing only officials and lower-court judges of its determination.
As a result, several hundred
appeals against decisions of the DECs not to approve appeals against the
results at PECs, directed to the CEC,
were summarily rejected after the time period for submission to court (two
days) had expired. Many other appeals were also rejected by the CEC for a
variety of technical reasons, such as incomplete address – e g., failure to include the city or municipality name after the
number and location of the PEC in question. (Election Code Article 61.2 [c]
required the “address” of the PEC to be included.)
Similar appeals to the
courts fared little better, however. Of the seventy cases filed, about 50 were
admitted and the remainder rejected for various technical reasons. Five claims
were partially satisfied by the district courts, and the results in eight
precincts annulled. While other reasons were given for rejecting petitions, the
chief cause was reportedly failure to appeal the results of the counting at a
PEC to the DEC before proceeding to court (as required under former Article
77.28 for appeals concerning the PEC protocol of results or ordinance adopting
it), or missing the deadline for submission (which often resulted from
submission to the CEC, instead of the courts as required under the Supreme
Court’s interpretation).
Parliamentary Elections
Pre-Election Complaints
According to the OSCE/ODIHR
final report on these elections, prior to election day in May 2008, 69 appeals
were submitted to the DECs (which are responsible for registering candidates in
majoritarian elections in their districts) and 27 to the CEC (which is
responsible for registering national list candidacies, as well as reviewing DEC
decisions on appeal). The district courts received 40 appeals, of which 19 were
further appealed to the courts of appeal; and two suits were brought to the Constitutional Court.
The best-known pre-election
complaint was filed in the CEC by several opposition parties, seeking annulment
of the candidate list registration of the governing United National Movement
(UNM) party. This followed the last-minute withdrawal of the leading candidate
on the list, former Parliamentary Speaker Nino Burjanadze, under circumstances
which raised questions about whether the final UNM list could have been
submitted on time. (The complainants were denied access to the nomination
papers that were filed before the deadline.) The complaint was rejected by the
CEC and appeal to the Tbilisi City Court was denied for legal and procedural
reasons.
As in the presidential
elections, most pre-election complaints involved abuse of office or misuse of
state resources by public officials (see separate case study), and other
campaign violations such as alleged vote buying (ditto) that could be the basis for the de-registration of a party
or candidate or other punitive measures. (Under amendments to the Election Code
enacted in March 2008, the provisions on all these subjects had been
extensively revised.)
Post-Election Complaints
According to the government,
a total of 1,210 complaints were filed with election commissions on or after
Election Day. Of these, 854 were submitted to PECs;
339 to the DECs and 17 to the CEC. An additional 48 appeals were made to the
courts.
Following the confusion that
resulted from conflicting channels of appeal during the presidential elections,
legislative amendments enacted prior to the parliamentary elections extensively
revised the rules in this area. The basic provisions were found in Election Code
Articles 77 and 771, with the former stating general principles and
the latter more specific provisions regarding legal standing to bring an appeal
to court.
The main change (contained
in Election Code Article 77.1) was to eliminate an alternative channel of
appeal (to court) by specifying what has been referred to as a “three-step
rule” – i.e., that complaints/appeals
are first brought to the relevant election commission, then to the next higher
commission, and after that to the district courts (with the possibility of
further appeal to the appeals court). Thus complaints about the PECs would first be submitted to them, and then
appealed to the relevant DEC, with the right of further appeal to court.
Complaints about the DECs would be submitted to them, with appeal to the CEC
(and court). Complaints about the CEC would be submitted to it, then appealed
to the CEC with right of further appeal to court.
Other provisions of the
Election Code were also relevant to determining the nature and timing of a complaint,
so the appropriate rule could be applied. Under Election Code Article 61 a
complaint concerning voting procedures is made from the time of opening of the
voting (at 0700 hours) until the completion of voting and opening of the ballot
box (paragraph 1). A complaint concerning counting and summarization of the
vote at the PEC, or for the annulment of the results, is made before filling
out of the summary protocol (paragraph 5, as amended 2008). If not accepted by
the PEC, such complaints can be submitted to the DECs instead, within
prescribed periods (paragraphs 4, as amended, and 6).
The above distinction is
relevant to the channel of appeal, since the Government indicated shortly after
adoption of the amendments that appeals concerning the subsequent adoption of
the summary protocol by PECs and their approval by the DECs would be an
exception to the three-step rule. In this case, appeal from the DEC would lie
directly to court rather than to the CEC.[4]
This provision was the successor of the previous provision (Election Code
Article 77.28) which caused such great jurisdictional confusion during the
presidential elections. However, the Government soon made a turnaround, and
indicated that that the paragraph contained an erroneous sentence and had therefore
been removed at the request of non-governmental organizations.[5]
In the event,
complaints/appeals submitted after the parliamentary elections were somewhat
more successful than during the presidential election. According to the Georgian
Inter-Agency Task Force on Elections, overall the results at 41 precincts were
annulled: 27 PECs annulled by the DECs
in both the proportional and majoritarian elections, and an additional two in
the majoritarian elections only. The DECs also undertook a number of disciplinary
actions against violators. On appeal at the courts, 11 appeals were decided for
the appellant, resulting in 12 additional annulments. The courts also ordered a
recount at one PEC and instructed two DECs to review their earlier decision.
The courts considered 42 of the 48 cases “on the merits”, rather than
dismissing them for technical reasons (but of course that does not necessarily entail
that the evidence was given full consideration.
[1] OSCE/ODIHR,
The Former
Yugoslav Republic
of Macedonia, Early
Parliamentary Elections, 1 June 2008, OSCE/ODIHR Election Observation Mission
Final Report (Warsaw,
20 August 2008), p. 15
[2] See OSCE/ODIHR Election Observation Mission Final Report, Former Yugoslav
Republic of Macedonia, Early Parliamentary Elections, 1 June 2008, p. 15.
[3] D. Finn, OSCE Expert, “Complaints and Appeals,” draft
chapter (25 September 2008, 10 pp.) for planned
book by the Council of Europe (Tbilisi office) and the OSCE Mission to
Georgia, Georgia, Presidential and
Parliamentary Elections 2008: Lessons Learned, publication of which was
canceled due to unexpected closing of OSCE Mission in Tbilisi in January 2009.
[4] Government of Georgia, Inter-Agency Task Force
[IATF] on Elections, Update Vol. 1, 26 March 2008)
[5] Ibid., IATF Update, Vol. 2, 14 April 2008
