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.