Official Supervision
Certain countries (such as Austria, Croatia,
Germany and Romania) assign a broad
role to their constitutional court in overseeing the electoral process, and in
some of these countries the same court also exercises appellate jurisdiction
over electoral appeals. The role of the
constitutional court over elections in these countries appears to reflect the
great respect accorded to these courts as an institution which has emerged from
the countries’ histories of internal and external conflict, as an important
guarantor of constitutional governance.
In some jurisdictions, the
view is held that a conflict of interest may exists when the same body that is
the overseer of elections also exercises jurisdiction over electoral appeals;
this would put the court in the position reviewing the very process it is
supposed to have been supervising. In Croatia, this issue has been addressed procedurally
in part by creating separate channels for bringing election-related matters
before the Constitutional Court (CC).
In Croatia, complaints
regarding electoral administration are submitted to the State Electoral
Commission (SEC), and SEC decisions on complaints can be appealed only to the
CC. Under the CC’s statute, however, it
may also act on requests to exercise its power of “supervision” of elections or
on electoral “disputes”. (The former are decided by the full Court; the latter
are normally decided by special three-judge councils.) This distinction between election supervision
and disputes was created through Constitutional Law and is incorporated in the
CC’s rules of procedure.
Prior to the elections, the Court decided six cases, rejecting all
appeals. These included five “disputes”,
including: Two appeals from
non-registration of candidate lists; a case, submitted as a “dispute”, which
requested a ruling on the constitutionality of recent electoral legislation; a
dispute concerning the amount of reimbursement for campaign expenses for a
member of Parliament who left his party to run on an independent list; and a
dispute submitted by opposition parties against the location of polling
stations in one area. Another case,
brought for “supervision”, concerned the Ethics Committee’s refusal to find
that a political party should have had the opportunity to have one of its
advertisements broadcast (see below).
The division of the CC’s jurisdiction
over electoral matters is very technical, and has made the outcome of cases quite
unpredictable. During the 2007
parliamentary elections, several significant cases submitted to the CC were
decided on purely jurisdictional grounds.
The situation was made more challenging by the fact that two different
bodies, the CC and an “Ethics Commission”, played a role in determining whether
violations had occurred.
The Ethics Commission is
created (as a “supra-partisan” body) under the electoral law, activated only
for the election campaign, and constituted of independent experts as well as
political party representatives. It
operates very informally under simple procedures, which do not include such
safeguards as publishing its agenda or notifying all affected persons of its
proceedings.
The role of the Ethics
Commission is to consider “election advertising” and related behavior of
election participants under an Election Code of Ethics maintained by the
Commission. Its main remedy for matters brought
to its attention is to release a brief announcement concerning its
determination about their ethics. In
prior years the Ethics Commission had been relatively quiescent, and prior to
the 2007 parliamentary elections the CC had actually issued an advisory
concerning its late formation (due to absence of nomination of members by the
political parties). But during the
elections a number of important issues were submitted and considered.
During these elections, a distinction emerged among campaign issues
which affected legal relations, electoral rights, or merely political
interests: In terms of legal relations,
the SEC decided in two cases that TV stations which failed to honor their
contractual obligations to broadcast paid commercials by political parties
within the agreed time periods committed violations.[1] In numerous other cases, not involving legal
relations or the rights of electoral participants, the Ethics Commission
published advisory decisions.
A jurisdictional issue arose in a case involving electoral rights. A right-wing party whose proposed
advertisement was not accepted for broadcast by the State broadcaster and a
private TV channel brought the matter to the Ethics Commission, which refused
to find the media action unethical.[2] Upon appeal to the Constitutional
Court,[3]
the judges reportedly split on the question of whether the Court should merely
review the action of the Ethics Commission, or exercise full (supervisory) jurisdiction.[4]
By limiting its consideration to a review the action
of the Ethics Commission, the Court’s action appears to assume that the
Commission has more than advisory power.
(It might have been more appropriate for the Court to consider fully, de novo, in a supervisory manner, a
matter which affected the right of a party to have its electoral advertisements
broadcast.) A serious disagreement then arose among the CC
judges over a decision to treat the matter as a “dispute” (review of the
decision of the Commission) instead of a request for supervision over the whole
issue. (The matter was first heard by a
panel of the Court, but subsequently reviewed by the full Court.) This implied that the Commission has more
than advisory power, but left the complainant without a remedy against its
action.[5]
In Austria the Federal Communications Committee (Bundeskommunikationssenat, or BKS), an autonomous entity within the
Ministry of Justice, performs supervision of press conduct and oversees other
media matters, including during elections. The BKS is composed of five members, three of whom must
be judges, who are independent in their official
Activities; and the Committee has the status of a "panel
authority with the powers of a court".[6]
The sole remedy that it can impose with respect to media activities during
elections is to issue a decision that broadcasters are required to publish.[7]
Post-Election Adjudication
In many countries, the Constitutional Court
or another high-level court (such as a Supreme Court) also plays a direct role
in the adjudication of electoral disputes, sometimes upon appeal from decisions
of other courts. There are two basic
roles for courts of any kind in the consideration of electoral disputes: During the electoral process, regarding
alleged official misconduct or private campaign violations; and/or at the end
of the electoral process, ruling on the overall fairness of an election.
In the countries just
considered, where electoral cases are heard by a high court (especially a
constitutional court), it is often the case that the main, if not exclusive,
arena for the resolution of electoral disputes is in that court and occurs only
at the end of the electoral process.
This is true in Austria, Germany and Romania,
for example. In such countries the Constitutional Court is held in great esteem, and
viewed by the public as an important guarantor of their civil and political
rights. The public is therefore
confident that electoral cases will be resolved fairly, even though the
election has already transpired at the time appeals are heard.
With respect to the
last parliamentary elections in Germany,
as well as the latest presidential election in Austria,
international observers have suggested that a final judicial remedy at the end
of the electoral process runs contrary to international standards and best practices.[8] In a footnote, the observers cited a variety
of “soft law” sources in support of this conclusion.[9] (The observers were aware, however, that
enforcement of relevant laws and regulations continue during the electoral
period, despite the absence of specifically electoral remedies.)[10]
Deferring appeals
until the end of the electoral process may make adjudicators less willing to
take adverse action, since that could lead to overturning the results, in whole
or in part, after such a major legal and political event has already
occurred. Nonetheless, in addition to
the countries just discussed, a large number of other countries also defer the
consideration of electoral appeals per se
until the end of the electoral process.
This is also true in
those electoral jurisdictions, including many Commonwealth countries, which
follow the U.K.
approach as contained in the Representation
of the People Act. Under this
approach, an election can be challenged only through an election petition
submitted after the results are announced.
It also may be said, however – as reflected in some of the other case
studies – that in those countries in which access to the courts is provided
during the electoral process, the procedures may be deficient and the available
remedies not always effective.
[1] SEC
Letter concerning Action of Social Democrats complaint against NOVA TV, 21
November 2007; SEC Letter concerning Croatian Youth Party complaint against
Youth TV, 22 November 2007
[2]
Ethics Commission Announcement concerning HSP complaint against Youth TV, 10
November 2007. It may be of interest to
note that another case taken up by the Ethics Commission during the same
election involved refusal by the State broadcaster to run an intemperate
advertisement by a ultra-nationalist party concerning the supposed lack of
support by other parties for Gen. Ante Gotovina, a hero of the Croatian war of
independence who was later convicted of war crimes by the International
Criminal Tribunal for the Former Yugoslavia – but whose conviction was
overturned, leading to his release from custody in November 2012
[3]
Decision Nr. U-VII/4189/2007 (20 November 2007)
[4] Vecernji List, 22
November 2007
[5] See
OSCE/ODIHR, republic of Croatia, Parliamentary elections, 25 November 2007, Limited Election Observation Mission Final
Report, (Warsaw,
30 April 2008), pp. 18-20.
[6] KommAustria
Act , Article 12
[7]
OSCE/ODIHR, Republic of Austria, Presidential Election 25 April 2010, ODIHR Election Assessment Mission Report (Warsaw, 9 July 2010), pp.
14-15
[8] Ibid., p. 17: ”The current system,
while enjoying general confidence, is not consistent with OSCE commitments,
particularly Paragraph 5.10 of the 1990 Copenhagen Document which
provides
that “everyone will have an effective means of redress against administrative decisions,
so as to guarantee respect for fundamental rights and ensure legal integrity”. Paragraph
13.9 of the 1989 Concluding document of the Vienna Meeting (CSCE) reiterates
“the right to a fair and public hearing within a reasonable time before an independent
and impartial tribunal.” The 1991 Moscow Document stipulates that “participating
States will endeavour to provide for judicial review of [administrative]
regulations and decisions.”
[9] Ibid.: “In addition to
OSCE commitments international commitments and best practice include: UNHRC General
Comment No. 31, paragraph 15, requires that states “ensure that individuals
also have accessible and effective remedies to vindicate…rights” and emphasizes
an “obligation to investigate allegations of violations promptly, thoroughly
and effectively through independent and impartial bodies.” The Venice
Commission’s Code of Good Practice in Electoral Matters, paragraph 95, emphasizes
the importance of having appeals about pre-election matters resolved in a
timely manner before election day.
