Where there is a right, there must be a remedy[1]

The right to an effective remedy is well established in international law, and stems from the fundamental rights of political participation and universal suffrage. It is the violation of these rights – intentional or otherwise – that necessitates a remedy to restore them. Election experts from the International Foundation for Electoral Systems (IFES) were recently invited to contribute four chapters to a publication of the American Bar Association’s (ABA) Standing Committee on Election Law, entitled International Election Remedies, published in November 2016. In the book, IFES Senior Legal Specialist, Katherine Ellena, and Director of the Center for Applied Research and Learning, Chad Vickery, note that election observers frequently identify the failure to provide effective remedies as a key weakness in the electoral process, but it is not clear what constitutes an “effective” remedy. Further research is needed on just how the efficacy of different remedies might be better measured – and ultimately their application better refined.

What is being remedied?

Effective remedies are needed to respond to mistakes and violations by different actors throughout the electoral cycle that may cast doubt on the integrity of the process itself. One approach used by IFES to analyze challenges to the integrity of the election process distinguishes between violations related to systemic manipulation, malpractice, and fraud.2 One key benefit of integrity distinctions is that they can help identify appropriate remedies depending on the type of vulnerability identified – for example the remedy for a procedural mistake will be different than for intentional fraud.

Who is the remedy for?

The effectiveness of a remedy depends in part on the parties that it affects. Whose rights have been violated?  Who can bring a complaint or appeal against the violation? Is there broader public interest in a particular remedy? In  principle, all actors who assert knowledge of an electoral irregularity should have legal standing to bring complaints, regardless of injury.3 Conversely, a principle of broad legal standing can lead to burdensome caseloads and increase the number of frivolous claims, which can undermine the efficiency of electoral dispute resolution (EDR) systems.⁴ Ultimately, the legal framework must find the right balance in terms of who can file a complaint to ensure that the legal system has the capacity to properly investigate and adjudicate legitimate claims in a timely and effective manner. 

What are the core elements of effectiveness?

There are arguably several core elements comprising the concept of “effectiveness,” and these elements concern both the effectiveness of the election dispute resolution system itself and the actual remedies the system produces:

A remedy must be effective in practice as well as in law

Even when the right to a remedy resides in the legal framework, access to an effective remedy may remain elusive. In Petkov v. Bulgaria, the European Court of Human Rights (ECtHR) ruled that a remedy must be “effective in practice as well as in law in the sense either of preventing the alleged violation or remedying the impugned state of affairs, or of providing adequate redress for any violation that has already occurred.”5 While it is important for remedies to be clearly set out in the legal framework, the application of these remedies must also be guaranteed: “winning the case is not the same as winning the remedy.”6

A remedy must be timely

in 2009 after the declared winner had spent two years in office.⁷ The need for the prompt resolution of electoral issues must also be balanced with the requirement for due process. In Namat Alieyev v. Azerbaijan, the ECtHR held that time restraints “may not serve to undermine the effectiveness of the appeal procedure.”8

A remedy should be proportional to the violation

While irregularities often have relatively minor consequences and do not amount to violation of any fundamental human right, election contestants should not be permitted to flout the law with impunity.9 Rather, remedies for these violations should be proportionate to the harm caused. The availability of a range of remedies is necessary to ensure proportionality of the sanctioning system. Fines are particularly conducive to proportionality, since they can easily be varied from a small amount that is more symbolic in nature to a more substantial amount that can curb the activities of political actors.10 To ensure proportionality, one must consider the regularity of the violation, the impact of the violation on the process, what will correct the issue, and what deterrence is required to ensure others do not repeat the illegal act or careless mistake.

A remedy must be enforceable

A lack of proper enforcement can undermine the right to an effective remedy and must be addressed if the EDR process – and the electoral process as a whole – is to be respected by the electorate and if electoral and judicial institutions are to be seen as legitimate. In Petkov v. Bulgaria the ECtHR stressed that the “rule of law…entails a duty on the part of the State and public authorities to comply with judicial orders or decisions against them.”¹¹ The enforcement of remedies and sanctions is important not only to give substance to rights, but also to deter future instances of malpractice and fraud.

A remedy should be effective in deterrence

An effective remedy implies the availability of sanctions and penalties, such as decertifying a candidate, disqualifying a political party, suspending the right to campaign, invalidating a ballot, or ordering a recount.¹² To effectively deter, the availability and application of sanctions must be known. Without clear procedures and publication of resolutions or remedies, the deterrence value decreases. Beyond these clarity and transparency measures, penalties or sanctions must be sufficiently strict to deter each different kind of violation, and sanctions will be more effective in deterrence if all parties engaged in a violation are penalized.13

A remedy should reinforce the perception of fairness and the credibility of the process

Finally, effective remedies are essential for undergirding the credibility of the electoral process. Research focused on the effectiveness of institutions suggests that people largely react to the fairness by which authorities make de­cisions and exercise authority, and that these reactions “shape both their willingness to accept decisions and their everyday rule-following behavior.”14 Citizens must believe the will of the voter is ultimately reflected in the election result, and that losing candidates have a right to redress via an effective dispute resolution process that considers all legitimate complaints.

For further information on this publication or to purchase a hardcopy, please contact Elizabeth Yang at [email protected] or Katherine Ellena at [email protected].

[1] William Blackstone, Commentaries on the Laws of England 23 (1768).

2 Chad Vickery & Erica Shein, Assessing Electoral Fraud in New Democracies: Refining the Vocabulary, in IFES White Paper 9 (2012).

3 Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections [GUARDE] (Chad Vickery ed., 2011), 21.

⁴ A case can be made that exceptions to ordinary rules on standing are justified with regard to certain types of grievances.  See Carter Center, Electoral Resolution Experts’ Meeting 2, 10 (2009).

5 Petkov v. Bulgaria, Nos. 77568/01, 178/02, & 505/02, 5 Eur. Ct. H.R. ¶ 74 (2009).

6 Miyagawa v. Peru, Case 11.28, Rep. No. 119/99, Inter-Am. Comm. H.R. doc. 3 rev. ¶ 1262 (Oct. 6, 1999).

⁷ This provision of the electoral law recalls section 294(1) of the Nigerian Constitution, that “every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses.” Constitution of Nigeria (1999), § 294(1).

8 Namat Aliyev v. Azerbaijan, App. No. 18705/06, 2010 Eur. Ct. H.R. ¶ 72 (2010) at ¶ 90.

9 Cameron Quinn and David Ennis, International Election Remedies, Chapter 6

10 Magnus Ohman and Megan Ritchie, International Election Remedies, Chapter 10

¹¹ Petkov v. Bulgaria, Nos. 77568/01, 178/02, & 505/02, 5 Eur. Ct. H.R. ¶ 74 (2009) at ¶ 62. (“The applicants complained of the electoral authorities’ refusal to comply with the final judgment of the Supreme Administrative Court declaring their striking off the lists of candidates null and void, and of their resulting inability to stand in the parliamentary elections on 17 June 2001.”).

¹² Electoral Law art. 5 of 2014 (Afg.) at art 54 § 1; Electoral Reform Law §§ 22-25 of 2004 (Liber.) (penalizing fraudulent registration and bribery); The New Elections Law, § 10.25, 10.26 of 1986 (Liber.).

13 Magnus Ohman and Megan Ritchie, International Election Remedies, Chapter 10

14 Tom R. Tyler, Why People Obey the Law, Princeton University Press (2006)