Most investigations of
electoral irregularities are undertaken in response to a complaint from an
individual or findings of the oversight body. In systems where investigations
are not conducted by the police, investigators might not be empowered to
initiate an investigation without a sworn complaint or other authorization.
This is the case in Canada,
where special investigators cannot start an investigation without the approval
of the Commissioner of Canada Elections or the Counsel to the Commissioner.[1] A
complaints process that is non-threatening and easily accessible to the average
citizen can facilitate the reporting of integrity problems. Citizens should not
be afraid of submitting a valid complaint or be deterred from doing so because
of cumbersome or intimidating procedures. In general, complaint processes often
include the following features as a means to contribute to the integrity on an
election:
- Any person is able to
file an electoral or related complaint if he or she has reasonable grounds
to believe that a law has been broken or a violation is about to occur; this
helps authorities uncover and deter crimes. To avoid overly numerous complaints, it
is possible to limit complaints submitted by individual
citizens/voters to certain subjects
(such as their own voter registration or that of other persons in their
area).[2] Or a certain number of voters may be
required in order to validate a complaint about electoral procedures more
generally.
- Complaints should be made
in writing, signed and dated, and sent to the appropriate office. To avoid
frivolous or anonymous complaints, some systems require official
complaints to be notarized. However, some persons may be afraid to make a
complaint if they have to identify themselves. The complaint system should
have a mechanism to deal with such situations by protecting
the identity of the complainant.
- Complaints should be made
in a timely manner, show that a violation has occurred and, if possible,
identify the persons involved. Complainants should differentiate between
statements based on their personal knowledge and second-hand information
or rumour. Sources of information must be identified; this helps ensure
that law enforcement officers have enough information to evaluate the
complaint and decide whether it warrants investigation.
Making
Complaints Public
Making a complaint
public, or keeping it secret, may raise integrity questions. Does the public
have a right to know about violations of the electoral process that have been
subject to complaint? If so, to what extent? If a complaint is made public,
suspects may realize that they are under investigation and destroy evidence.
Complainants may also be at risk for making a complaint and may want their
identity (or even personal security) protected.
Whether a complaint will be
made public during the investigation phase depends chiefly on the system and
the nature of the complaint. In Canada,
the policy is to “neither confirm nor deny the existence of a complaint and
investigation and to not comment publicly on the identity of a complainant.” Other
systems may confirm the existence of a complaint but not comment on the ongoing
investigation.
Whichever approach is used, a
balance needs to be found between ensuring transparency of the enforcement
process and ensuring the integrity of the investigation.
[1] Commissioner of Canada Elections, Investigators'
Manual, 2004. (Subsequent references
to the same source have been deleted; see immediately preceding note.)
[2] See,
OSCE/ODIHR, “Existing Commitments …”, op.
cit., Part One, para. 10.3: “Election contestants must have the ability to
submit complaints concerning all aspects of election operations, to have their
complaints head by the competent administrative or judicial body, and to appeal
to the relevant court. Voters shall have
the ability to complain and appeal concerning a violation of their suffrage
rights, including voter registration.” (references omitted)
