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.