Guidelines for Improvement of Electoral Laws of the Russian Federation
Draft
Report of the Draft Team for preparation of
draft laws to improve the electoral system
in the Russian Federation
The Draft Team for the preparation of draft laws to improve the electoral system in the Russian Federation was established on March 20, 1996 by a joint directive of the Chairman of the Federation Council of the Federal Assembly of the Russian Federation, Chairman of the State Duma of the Federal Assembly of the Russian Federation, Chairman of the Government of the Russian Federation, Chairman of the Central Election Commission of the Russian Federation. The Draft Team was formed by deputies of the State Duma, members of the Federation Council, representatives of the Government of the Russian Federation, members of the Central Election Commission of the Russian Federation, representatives of election commissions of Russian Federation subjects, jurists.
The Draft Team has held several meetings in the course of which it has drawn up the guidelines for improvement of the electoral laws of the Russian Federation. These guidelines include improvement of the current electoral laws (the Federal Laws «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation,» «On Elections of Deputies of the State Duma and the President of the Russian Federation») and preparation of new laws which ensure development of the electoral system in the Russian Federation. These laws include laws on financing of electoral campaigns and on the State Automated System «Elections» (»Vybory»).
Moreover, the Draft Team has come to the conclusion that the main principles of the electoral system in the Russian Federation should be incorporated in the Constitution of the Russian Federation.
The experience of the past electoral campaigns for the election of deputies of the State Duma in December 1995 and the election of the President of the Russian Federation in June and July 1996, elections to the bodies of state power in Russian Federation subjects and to local government bodies have made it possible to accumulate a tremendous amount of material which can serve as a starting point for resolving, by legislative means, numerous problems that arise during preparation and conduct of elections, to fill the gaps and remove contradictions in the federal electoral laws.
The State Duma is also working on the improvement of electoral laws, Thus, it has examined several draft laws on modifying and amending the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» and has adopted the Federal Law «On Introducing Amendments in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation,» «On Ensuring the Constitutional Rights of Citizens of the Russian Federation to Elect and Be Elected to Bodies of Local Government.» At the same time, it is noteworthy that so far these changes have not been systemic and some of them conflict with current laws.
Proceeding from the above the Draft Team has concluded that it is necessary to hold parliamentary hearings on the guidelines for improvement of the electoral laws of the Russian Federation, that would make it possible to determine the main orientations in the work on improvement of electoral laws, establish priorities in this important field of law-making activity and take into account the view points of a wide circle of deputies of the State Duma and members of the Federation Council.
In the opinion of the Draft Team, at present, improvement of the electoral laws of the Russian Federation must be carried out along the following main lines.
1. The first and foremost task is to improve the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation.» Since its adoption this law has fully proved its necessity as the main interconnecting link in the system of federal electoral laws. This law, which incorporates the requirements of the international electoral standards, has correctly determined the principal objective for the development of all electoral laws adopted in the Russian Federation. This objective is to ensure, as fully as possible, the electoral rights of citizens of the Russian Federation, guaranteed by the Constitution of the Russian Federation.
The Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» which regulates electoral institutions and procedures has opted for a non-traditional way of development of Russian electoral laws. The contents of this law provide a framework for the laws of the Russian Federation and subjects thereof, which regulate elections to the appropriate bodies of state power and local government bodies.
At the same time, with regard to citizens of the Russian Federation and their associations this law has established concrete guarantees for the exercise of their right to elect and be elected to bodies of state power and local government bodies. These guarantees allow them to protect their rights by direct recourse to the norms of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation.» In this way the direct action of the Federal law was ensured.
The Federal Law has laid a democratic organizational basis for elections held in the Russian Federation. It made election commissions responsible for the conduct of elections and established the principles of their formation and organization of their activity. Today, it can be stated that the system of election commissions that has taken shape in the Russian Federation is capable of effectively solving all problems in the preparation and conduct of elections thereby ensuring the realization of electoral rights of citizens of the Russian Federation.
At the same time, it must be noted that a number of problems arise in the application of the Federal Law and these problems require closest attention.
First. The legislative bodies of Russian Federation subjects are not always consistent enough in realizing the guarantees of electoral rights of citizens proclaimed by the Federal Law, and this often impairs the democratic nature of elections held in Russian Federation subjects. This particularly concerns questions connected with granting an active and a passive electoral right to citizens of the Russian Federation.
Thus, under the fourth part of Article 4 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» the laws and other statutory acts of Russian Federation subjects may establish additional conditions for a citizen of the Russian Federation to gain a passive electoral right, the said conditions being connected with the length of his/her residence in a definite territory of the Russian Federation depending on the level of the elections. The length of mandatory residence in this territory must not exceed one year. However, under electoral laws of some Russian Federation subjects the length of mandatory residence is fifteen years (Republic of Sakha), ten years (Republic of Adygeya, Republic of Bashkortostan, Republic of Buryatia, Kabardino-Balkar Republic, Komi Republic), seven years (Republic of Karelia, Republic of Khakasia). Moreover, the aforementioned norm of the Federal Law is often interpreted in different ways even in those laws of Russian Federation subjects which reproduce this norm as regards the length of residence (one year). Here, two questions may be asked. The first question: what residence does the legislator have in mind: permanent, predominant or temporary? In some Russian Federation subjects it was established that residence can only be permanent. However, under Article 2 of the Russian Federation Law «On the Rights of Citizens of the Russian Federation to the Freedom of Movement, Choice of the Place of Sojourn and Residence within the Russian Federation» residence may be permanent, predominant or temporary. The second question: at what time must a citizen reside in the given territory to gain a passive electoral right: at the time of the elections or during any period before the election day? Such ambiguous interpretation is exemplified by the election of the head of the administration in Kursk Oblast, where the refusal to register A.V. Rutskoi as a candidate running for the office of the head of the administration was based on the argument that under the Law of Kursk Oblast «On Elections of the Head of the Administration of Kursk Oblast» one of the conditions for election of a citizen of the Russian Federation to this office is his/her permanent residence in the territory of the oblast for not less than one year, whereas A.V. Rutskoi had not resided in the oblast for this period as of the election day and, therefore, did not have a passive right. This decision was annulled by the Decision of the Presidium of the Supreme Court of the Russian Federation dated October 16, 1996.
It must be pointed out, however, that the aforementioned decision of the Supreme Court confirmed that the provisions of Article 4 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» conform to the principles of the Constitution of the Russian Federation. Therefore, we believe that this rule may be retained in the Federal Law but, at the same time, it has to be made more specific. We think that this rule may be formulated as follows: «Laws and other statutory acts of the Russian Federation may establish additional conditions for a citizen of the Russian Federation to gain a passive electoral right, the said conditions specifying the length of his/her permanent or predominant residence in a definite territory of the Russian Federation depending on the level of the elections. The length of residence in the given territory shall not exceed one year within any period before the day of the candidate's registration.»
Another example demonstrating the consequences ensuing from nonconformity of a law of a Russian Federation subject to the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» is the situation that took shape before the election of the President of the Republic Marii El. Under the laws of the Republic one of the conditions for gaining a passive electoral right was the command of the Mari language.
In a situation where the law of a Russian Federation subject conflicted with the Federal Law the actions of the election commission of the Republic which applied the Federal Law made it possible to realize the electoral rights of citizens of the Russian Federation who live in the Republic.
Secondly. At present, there are several contradictions between the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» and the Federal Laws «On Elections of the President of the Russian Federation» and «On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation.» These contradictions to a certain degree disorient practical application of law (this is exemplified by the decision of the Supreme Court of the Russian Federation on the complaint lodged by Solovjev against the directive of the Central Election Commission on the rules for safekeeping of election documents). A comparative analysis of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» and the Federal Law «On Ensuring the Constitutional Rights of Citizens of the Russian Federation Citizens to Elect and Be Elected to Bodies of Local Government» adopted by the State Duma on October 23, 1996 has shown that the latter law also contains several provisions which conflict with the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation.» In this connection the law enforcer can ask some more questions. They concern, for instance, the minimum age which a Russian Federation citizen must attain to gain the right to be elected as a deputy of a representative body of local government; definition of an electoral association; time limits for certain electoral actions.
Thirdly. Already now one can feel that some guarantees of electoral rights of citizens are regulated inadequately and this suggests that the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» has gaps which must be urgently filled. These problems concern first of all:
 mandatory periodicity of elections to bodies of state power and local government bodies;
more precise definition of the principle of universal and equal suffrage;
determination of the status of election commissions and their place in the system of state bodies; refinement of the rules for the formation of election commissions; more specific definition of the status of members of election commissions;
more specific definition of the status of electoral associations;
nomination of candidates and collection of signatures;
financing of election campaigns;
provisions to ensure an equal legal status of candidates, neutrality of bodies of state power and local government bodies and their officials in respect of election campaigns conducted by all candidates;
improvement of the rules of pre-election campaigning in mass media;
more specific formulation of grounds on which elections may be declared null and void or to have not taken place;
development of the principle of an approximate equality of electoral districts;
recording and registration of voters;
organization of voting in remote and hard-to-reach regions;
establishment of responsibility for non-compliance with the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation.»
To resolve the aforementioned problems it is necessary both to improve practical application of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» and to correct this law as suggested below.
1.1. Mandatory periodicity of the elections. The Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» has no provisions which regulate the rules for calling elections and require mandatory periodicity thereof. This is an important omission in the list of the guarantees of the constitutional right of citizens to elect and be elected to bodies of state power and local government bodies.
Meanwhile, in actual practice, it frequently happens that elections are banned by the President of the Russian Federation, heads of the administration of Russian Federation subjects and heads of local government bodies; elections are postponed indefinitely; moratoriums are declared on elections because of the lack of funds. Moreover, in several krais and oblasts the term of office of the local representative bodies has expired but the law does not specify bodies which are authorized to call elections on the basis of charters.
All this requires that general norms declaring elections mandatory and laying down the rules for their calling be included in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation». These norms will have a basic significance for federal laws on elections of federal bodies of power and for laws of Russian Federation subjects on elections of bodies of state power in Russian Federation subjects and local government bodies.
A provision must be included in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» laying down that under the Constitution of the Russian Federation and federal law elections of deputies of the State Duma are called by the President of the Russian Federation at a definite time prior to the date of the elections; elections of the President of the Russian Federation are called by the Federation Council at a definite time prior to the date of the elections; elections to the bodies of state power in Russian Federation subjects are called by the representative (legislative) bodies of Russian Federation subjects at a definite time prior to the date of the elections, unless provided otherwise in the Charter or Law of the Federation subject. The same shall apply to elections to local government bodies.
It is advisable that the law shall establish common time limits of elections to bodies of state power and local government bodies of the next convocation, the said date to be specified in respect to the date on which the term of office of the current elective bodies expires, for instance: the first Sunday after the expiry date.
If the President of the Russian Federation does not call elections of deputies of the State Duma upon expiry of their term of office or upon termination of the term before its expiry, the elections shall be held by the Central Election Commission.
If the Federation Council does not call elections of the President of the Russian Federation upon expiry of his term of office or upon his removal from office before expiry of this term, the elections shall be held by the Central Election Commission.
If elections to bodies of state power of Russian Federation subjects are not called, the elections shall be held by the election commissions of Russian Federation subjects. The same shall apply to local government bodies except that in this case the elections shall be held by territorial election commissions.
A draft law on the introduction of appropriate amendments in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» has been prepared by the State Duma and could be approved in principle.
It must be pointed out that the aforementioned Federal Law «On Ensuring the Constitutional Rights of Citizens of the Russian Federation to Elect and Be Elected to Bodies of Local Government» lays down that elections to representative bodies of local government and elections of local government officials are mandatory and provides for elections to be called by a court order. However, under the second part of Article 1 of the aforementioned Federal Law its norms are effective insofar as appropriate regulation is not provided by laws of Russian Federation subjects and therefore, these norms are temporary and do not ensure mandatory holding of elections at the level of local government on a stable and permanent basis. These norms , however, show that one of the possible ways to ensure mandatory holding of elections, if they are not called by a body duly authorized to do so by law, is to confer the right to enforce mandatory periodicity of elections on courts of law rather than on election commissions. Nevertheless, the authors of both approaches will probably agree that a uniform approach is needed to elections at all levels.
We believe that since the right to participate in running the affairs of the state both personally and through representatives is laid down by Article 32 of the Constitution of the Russian Federation, calling of elections is not only a right of definite bodies of power but also their constitutional duty. If we speak about truly periodic holding of elections, it is necessary to consider the question of supplementing federal law with norms which prescribe Russian Federation subjects to legislatively establish fixed periodicity of calling and holding elections, proceeding from the fact that elections are held by election commission by right, including elections called by state bodies duly authorized to do so.
In this situation, a court may be regarded as an authority which steps in if the aforementioned duty is not discharged by the election commission.
1.2. After the Federal Law «On Ensuring the Constitutional Rights of Citizens of the Russian Federation to Elect and Be Elected to Bodies of Local Government» came into force, it became necessary to formulate more precisely the principle of universal and equal suffrage.
As was mentioned above, under Articles 4 and 8 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation,» which lay down the rules for granting an active and a passive electoral right to citizens of the Russian Federation, a citizen of the Russian Federation can participate in the elections at the place of his/her residence and, under Article 2 of the Russian Federation Law «On the Right of Citizens of the Russian Federation to the Freedom of Movement and Choice of the Place of Sojourn and Residence within the Russian Federation», residence is divided into permanent, predominant and temporary.
Contrary to Articles 19 of the Constitution of the Russian Federation and Articles 4 and 8 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» Articles 1 and 3 of the «Provisional Regulations on Holding of Elections of Deputies of Representative Bodies of Local Government and Elective Officials of Local Government in Russian Federation Subjects which Have not Ensured Realization of the Constitutional Rights of Citizens of the Russian Federation to Elect and Be Elected to Bodies of Local Government» approved by Article 5 of the Law «On the Right of Citizens of the Russian Federation to the Freedom of Movement...» grants a passive and an active electoral right only to those citizens who permanently reside in the territory of the appropriate municipal unit. This expresses the point of view of the federal legislator and, as the analysis of the statutory acts of Russian Federation subjects shows, this point of view is supported by legislators in Russian Federation subjects: the right to participate in the elections to the bodies of local government is granted only to those citizens who permanently reside in the territory of the given municipal unit or even within a definite part of this territory (when deputies of a representative body are elected in districts). Apparently, under such an approach, some citizens of the Russian Federation are presently deprived of the right to local government (for instance, enlisted men and noncommissioned officers), contrary to the principles laid down by Articles 19, 32, 130 and 131 of the Constitution of the Russian Federation.
The third part of Article 55 of the Constitution of the Russian Federation states that the rights and freedoms of a person and a citizen may be restricted by federal law only in so far as this is necessary for safeguarding the rights and legitimate interests of other persons, in the given case - the rights of citizens of the Russian Federation permanently or predominantly residing in the territory of the appropriate municipal unit independently to deal with local problems.
Thus, the Constitution of the Russian Federation allows of a possibility legislatively to restrict the rights of enlisted men and non-commissioned officers.
In this connection, it is necessary to adopt legislative provisions to solve the problem of registration of this category of voters: at present there are no legal grounds to assume that a a soldier or a non-commissioned officer who is stationed outside the territory of the municipal unit where he had lived before he was called up does not reside in the territory of the municipal unit where he is presently stationed.
1.3. Perhaps, it is worthwhile to consider incorporating a legal definition of the status of the Central Election Commission of the Russian Federation and other election commissions in the Russian Federation in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation»; adopting legislative provisions to determine the place of election commissions in the system of state bodies; strengthening the principle of the independence of election commissions during preparation and conduct of elections.
There is no uniformity in current laws regarding formation of election commissions. It is necessary to decide whether election commissions are formed on the basis of, or with due regard for, the proposals of public associations, elective bodies of local government, meetings of voters at the place of their work, study and residence.
In our opinion, it is necessary to use legislative means to prevent election commissions from being formed only by persons on the government service, as is often the case; to enhance the role of political parties in the formation of election commissions; and to eliminate from this process meetings of voters at their place of work, study or residence.
To ensure that election commissions have specialists experienced in the work with normative documents we believe it possible to submit for discussion the following proposal: courts and procurator's offices must be granted the right to propose a definite proportion of candidates to election commissions of any level (with the exception of the Central Election Commission) and, to ensure continuity and professionalism of the commissions, the same right must be granted to election commissions of the previous composition (if their term of office is equal to the term of office of the elective body the elections to which they prepared and conducted).
At present, several subjects of the Russian Federation are questioning the principle of independence of election commissions. Legislative provisions are adopted which allow voting members of an election commission to be recalled, which makes it possible for the authorities to exert stronger influence on the conduct of elections in their interests and infringes the electoral rights of Russian citizens. Federal law must put an end to these practices.
The principle of independence of election commissions may be strengthened by introduction in federal law of provisions regulating the status of members of election commissions of all levels (such provisions might be based, for instance, on Article 19 of the Federal Law «On Elections of the President of the Russian Federation»). Such provisions would establish social and other guarantees for voting members of election commissions, specifically, after the commission is wound up due to the expiry of its term. This might be, among other things, a rule under which such citizens cannot be fired without their consent within a year after they finished work in the commission or a norm establishing certain social guarantees (financial assistance, etc.) during a definite period after they quit their job and until they find other employment or retire.
Federal laws might lay down the main powers of election commissions of all levels and determine their term of office;
the Central Election Commission of the Russian Federation and election commissions of Russian Federation subjects act on a permanent basis and their term of office is fixed by federal law;
the term of office of district election commissions is equal to the term of office of the body the elections to which they prepared and conducted;
the term of office of precinct election commissions expires one month after the commission determined the results of the elections.
It is necessary to consider the possibility of extending the term of office of territorial election commissions and to stipulate that one of the members of a territorial commission shall work on a permanent basis. The following arguments can be put forward in support of these proposals.
A longer term of office of territorial election commissions will make it possible to realize the right to appeal against actions and decisions of these commissions, which is often unrealizable at present because of the expiry of the term of office of the commission whose actions and decisions are appealed.
It must be also taken into account that the current electoral laws in the Russian Federation provide for practically continuous process of elections from the federal level to the level of local government and a territorial election commission is involved in the elections of all levels.
It is necessary to formulate more precisely the right of the Central Election Commission of the Russian Federation and election commissions of Russian Federation subjects to supervise observance of electoral rights of citizens of the Russian Federation. For instance, the Central Election Commission might be obliged to submit to the appropriate bodies of state power of the Russian Federation subject its conclusions regarding the conformity of the electoral laws of the given subject of the Russian Federation to the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation,» with the said bodies of state power being required to consider these conclusions in a prescribed manner.
The aforementioned election commissions must also be granted the right to repeal decisions taken by commissions of a lower level in accordance with the system of election commissions established by the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» and also to repeal decisions of election commissions if they violate the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation», regardless of the level of elections.
In the course of preparation and conduct of elections of deputies of the State Duma and the President of the Russian Federation there arose a question concerning issuance by the Central Election Commission of instructions and other regulatory acts. Under Article 23 of the Federal Law on the elections of deputies of the State Duma and Article 15 of the Federal Law on the elections of the President of the Russian Federation the Central Election Commission may issue instructions and other regulatory acts to ensure uniform application of the appropriate federal laws.
In some cases, when issuing instructions and clarifications binding on a broad circle of participants in the election process the Commission has acted as directly prescribed by law. This is true, for instance, of the instructions which establish the procedure for providing air time to candidates, electoral associations, electoral blocs on the channels of the state TV companies, the said instructions being provided for by Article 47 of the Federal Law on elections of deputies of the State Duma. In most cases, however, instructions and clarifications intended to ensure uniform application of federal laws were issued by the Central Election Commission on its own initiative.
It must be also noted that since the clarifications issued by Central Election Commission in the course of past election campaigns were intended to resolve contradictions, fill the gaps and clear up vague provisions of federal laws various regulatory documents of the Central Election Commission might be used as a basis for amending these federal laws.
For instance, one of such amendments might be based on the the Unified Rules approved by the Central Election Commission for processing voting returns and drawing up protocols of precinct and territorial election commissions and election commissions of Russian Federation subjects for elections of the President of the Russian Federation as well as on similar Unified Rules for elections of deputies of the State Duma.
By way of example we will cite the following excerpt from the Unified Rules for elections of the President of the Russian Federation:
'Votes of the voters shall be counted without any interruption until the the voting returns are obtained, the said voting returns to be announced to voting and non-voting members of the election commission, observers, including foreign (international) observers, representatives of mass media who have a right to be present at the vote count.
The vote count shall be organized by the Chairman of the precinct election commission and, in his absence, by the Deputy Chairman or by another member of the precinct election commission duly authorized by the commission. The tables on which votes are counted must be arranged so that the actions of of members of the precinct election commission shall be in full view of all persons witnessing the count.
To meet the requirements of federal law and these Unified Rules concerning publicity and openness of the vote count the precinct election commission shall be entitled to establish, at its own discretion, the form of work with filled-out ballots, including the announcement of the contents thereof.
It is recommended that an enlarged form of the protocol be displayed for public view (use can be made of a large sheet of paper or a blackboard), in which voting returns shall be recorded during the count.»
Such norms, if introduced in federal law (with certain corrections), will make it possible to establish the system for determining the voting returns and the results of the elections, to ensure maximum «transparency» of the process of vote counting and drawing-up of the protocol of voting returns and to make this process accessible to observers and other persons who supervise the vote count.
1.4. From electoral associations to political parties. The Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation,» the federal law on elections of bodies of state power of the Russian Federation and laws adopted by Russian Federation subjects on elections of bodies of state power of Russian Federation subjects and local government bodies use the concept of «electoral association.»
The concept of «electoral association» was introduced by federal law at a time when the legal status of political parties was unclear and political parties were not adequately developed as a social institution. However, the practical experience gained from the elections has shown quite clearly that legal recognition of electoral associations as subjects of an electoral process has not justified itself. The right to participate in elections was granted public associations, which meet purely formal requirements but essentially are not political organizations, such as trade unions, associations based on common interests, business structures, etc. Instead of stimulating organizational structuring of parties recognition of the institution of «electoral associations» has resulted in the fact that on the eve of the elections new associations and blocs were created on the basis of hitherto completely unknown organizations.
All this indicates that time has matured for renouncing the institution of «electoral associations» and conferring the rights of a subject of the electoral process only on political parties (and, possibly, on political movements). The material criteria for classifying public associations as political parties must be established in the law on political parties which has been under preparation in the State Duma for a long time. However, in the meantime, at least a tentative definition of a political party as a participant in the electoral process might be incorporated in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» among other changes being contemplated for this law, without waiting for the adoption of the federal law on political parties. Subsequently, after the law on political parties is adopted, this concept might be modified. The definition of a political party might be formulated as follows:
«An electoral association is a political party established and registered in a manner prescribed by federal laws, laws of Russian Federation subjects or statutory acts of the legislative (representative) bodies of state power of Russian Federation subjects not later than one year before the appointment of the election day, i.e., a public association the sole purpose of which is to participate in the political life of society, in the organization and exercise of state power through recognition and realization of the political will of citizens, in the election and operation of bodies of state power, local government bodies, as well as a political movement - an association of political parties.»
1.5. Improvement of the forms of nomination and registration of candidates. From the formulations of Article 19 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» which regulates nomination of candidates directly by voters it is difficult to understand whether these formulations refer only to self-nomination of a candidate or also to nomination of a candidate by a group of voters. Another unclear point is the legal significance of a public initiative to collect signatures under the candidate's statement about his/her nomination. What is it: an act of nomination of a candidate by a group of voters or an organizational measure which helps the election commission to oversee the process of collection of signatures? It is difficult to give a definite answer to this question - this fact is demonstrated by the laws of Federation subjects on the election of bodies of state power of Federation subjects and local government bodies.
Some of these laws require formalizing groups of voters collecting signatures of voters in support of a candidate and lay down the right of groups of voters to nominate candidates. At the same time, several laws (such as the law of Irkutsk Oblast on elections to the local government bodies ) grant the right to nominate candidates only to electoral associations, electoral blocs and groups of voters and make no mention of the right of every voter to self-nomination.
In this connection, it is advisable to get rid of contradictory formulations of federal law, according to which, on the one hand, direct nomination of candidates by voters is performed by collection of signatures under the candidate's nomination statement and, on the other hand, the initiative to collect signatures may come from a voter (voters). In other words, the law must state quite clearly that nomination of a candidate may only be in the form of self-nomination, or only in the form of nomination by a group of voters, or in the form of both self-nomination and nomination by groups.
There are proposals to establish a norm under which a candidate may be registered only in one electoral district. In the opinion of those who advocate the given norm this would entail abolition of the rule entitling electoral associations to nominate the same candidate both in a federal and in a single-seat electoral district, which violates the principle of equal electoral law of citizens of the Russian Federation.
The Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» must be supplemented with one more norm prescribing mandatory verification (in the forms to be established by federal laws and electoral laws of Russian Federation subjects) of the compliance with law when voters' signatures are collected in support of candidates and checking of authenticity of voters' data contained in the signature lists. Several laws on elections to the federal bodies of state power, bodies of state power of Federation subjects and local government bodies state that «in case of doubt» about the authenticity of data contained in the signature lists or authenticity of signatures of voters the appropriate election commissions shall arrange for verification of signature lists, although the experience of past elections shows that signature lists can ba falsified without raising any doubts on the part of election commissions about their authenticity. Therefore, it is advisable to include in the federal law on guarantees of electoral rights a norm requiring mandatory verification (at least on a selective basis) of signature lists which were submitted to the election commission along with some general requirements to conclusions which the election commission must draw regarding registration of a candidate if it has detected a certain percentage of forged signatures in his/her support.
It is also worthwhile to discuss a question of supplementing the law with provisions which would lay down not only the minimum number of signatures but also their maximum number to be accepted for consideration and registration by election commissions and also a question of specifying in the law a definite percentage of false signatures, which, if exceeded, would bar the candidate from registration by the election commission.
it is necessary to formulate more concrete requirements to the execution of signature lists and to provide a separate norm regulating the procedure for acceptance of documents and grounds for refusal to accept them.
Criminal or administrative responsibility must be established in respect of persons who organize and perform collection of voter signatures for falsifying information in signature lists.
it must be pointed out that under Article 142 of the Criminal Code of the Russian Federation, which came into force on January 1, 1997, such responsibility can presently be imposed only on authorized representatives of initiative groups of voters. The Criminal Code of the Russian Federation which was in force before January 1, 1997 establishes a wider circle of persons liable to responsibility for falsifying election documents. At present, signature collectors and authorized representatives of electoral associations are not liable to prosecution under this article.
Another provision that has to be laid down legislatively is that signatures may be collected only by persons who have an active electoral right.
We also deem it necessary to submit the following proposals for discussion.
First. To establish a norm which would allow signatures to be collected only in places specially assigned for the purpose by the appropriate election commission and made known to voters. This norm would prohibit collection of signatures in labor collectives, etc. If this norm is adopted, the number of signatures which should be collected in support of a candidate must be reduced.
It is also possible to lay down a rule under which a voter may put his signature in support of only one candidate (list of candidates).
Secondly. To release from collection of signatures the incumbent President of the Russian Federation, heads of executive bodies, local government officials, deputies (in accordance with the level of the elections).
Thirdly. To introduce in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» a norm providing for payment of an election deposit as one of the conditions for registration of a candidate. The amount of such a deposit must be determined in the course of wide discussion of this problem although we believe that it must be commensurate with the officially established subsistence wage in the Russian Federation.
There are proposals to grant the election commission which registered a candidate a right to withdraw registration in cases provided by law (when the candidate is deprived of electoral rights by law, because of new circumstances which came to light in connection with the nomination of the candidate, when the candidate commits certain breaches of the electoral law).
1.6. Financing of Election Campaigns
The past election campaigns has demonstrated that legislative regulation must cover not only pre-election campaigning but the entire election campaign beginning from formation of an initiative group of voters and nomination of a candidate by an electoral association (bloc) or from the beginning of the elections year.
It is necessary legislatively to establish that in the course of an election campaign periodic reports must be filed to reflect formation and expenditure of the election fund. This will make it possible to apply the norms concerning violation of the rules for financing pre-election campaigning and sanctions therefor.
In pursuance of the principle of the equality of candidates laid down by Article 21 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» it is necessary to formulate more precisely the norm contained in the first part of Article 25 of this Federal Law which provides for formation of election funds of electoral associations during elections to bodies of state power and local government. This norm was often interpreted so that candidates who were nominated by electoral associations (blocs) and ran for election on a majority basis were in fact allowed both to establish their own funds and to use financing from the fund established by his/her electoral association. At the same time, it must be specified that, in case of a proportional system, when mandates are distributed among electoral associations which propose lists of candidates, the candidates included in these lists are not allowed to establish their own electoral funds
The list of acts and actions that are to be recognized as unlawful in the financing of pre-election campaigning must be extended. It is necessary expressly to ban acceptance of anonymous donations and donations made by the same donor via third persons. Apart from appropriate bans the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» must provide for additional punitive measures to be imposed under the Code of the RSFSR for administrative offences. This Code and, perhaps, the Criminal Code must provide for responsibility to be imposed on donors if they transfer money for pre-election campaigning to one of candidates (list of candidates) bypassing electoral funds. At present, persons making such donations practically bear no responsibility: the responsibility is established only for candidates, although registration of such candidates may be withdrawn only if it has been proved that the candidate has agreed to such an unlawful transfer, which is usually very difficult to do within a short period of the election campaign.
We also believe that a rule may be included in the Federal Law under which legal entities may receive remuneration for work and services connected with pre-election campaigning only from the appropriate electoral funds, along with norms which determine the mechanism for enforcement of this rule and establish responsibility for its violation.
We deem it necessary to submit for discussion a proposal to establish a rule under which election commissions shall not allocate money to the electoral fund of a candidate for pre-election campaigning. In the course of the election campaign the state will undertake to pay for the provision of free air time to candidates, to ensure their free travel over the territory of the Russian Federation and to pay them compensation for a leave of absence granted to them by their employers.
We also believe that along with introduction of the aforementioned changes in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» it is necessary to draft a separate federal law on financing of elections and referendums. This question will be dealt with in greater detail below.
1.7. On the legal principles for ensuring the equal status of candidates. The Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» provides that after registration candidates who are on the government or municipal service shall be released from their official duties during the period of their participation in the elections and that they shall not use their official position to their advantage. However, this norm does not ensure a genuinely equal status of candidates, because under Articles 1 and 2 of the Federal law «On the Principles of the Government Service in the Russian Federation» this norm does not apply to persons who occupy public offices of the category «A» (heads of legislative and executive bodies of state power, deputies, ministers, judges). Moreover, the laws of some Federation subjects on elections to bodies of state power and local government bodies do not reproduce even this norm and, consequently, this regulation of the Federal Law does not operate.
The given situation could be rectified by establishing administrative responsibility of officials for violation of the aforementioned provisions of the law.
In this connection, it is also necessary to discuss such questions as the need to replace the term «government service» with the term «public office» and to establish a rule under which registration of candidates who have not resigned from such offices within three days upon registration may be withdrawn by a court of law upon a request of the election commission.
However, the question of suspension of powers and provision of an unpaid leave of absence for a person who occupies a public office of category «A» is not a straightforward one even though the practical experience from the past elections to the federal bodies of state power and local government bodies in Russian Federation subjects shows that officials of bodies of state power and local government bodies have important advantages in the election campaign due to their official position. Therefore, as an alternative to the norm under which, upon registration, government or municipal officials (who occupy public offices) must be released from their official duties it is necessary to consider a proposal to include in federal law the norms establishing both administrative responsibility of such persons for taking advantage of their official position to win the elections and a possibility for a court to withdraw registration of a candidate who violated the electoral law in this manner.
In addition to this, it is necessary legislatively to establish the list of possible breaches of the regulation under which candidates are not allowed to take advantage of their official position.
Another question that has to be resolved concerns single-candidate elections. In particular, it must be established that a candidate may withdraw his/her candidature no later than five days prior to the election day and, if a candidature was withdrawn without compelling circumstances elections may be held with one candidate.
1.8. It is necessary to formulate more specifically the norms of federal law relating to rules for pre-election campaigning in mass media. This concerns, first of all, provisions establishing the ratio between time periods allotted for pre-election campaigning via non-state and state-owned mass media, the ratio between free and paid air time, participation of voters in preelection campaigning via state-owned mass media; the need to resolve contradictions between the right of a candidate to choose at his/her discretion the form of pre-election campaigning and the right of voters to make a well-considered choice between many candidates (the past election campaigns have shown that candidates shy away from such effective forms of campaigning as TV debates, roundtables, particularly during federal elections).
It is necessary to settle the problem of payment for free air time provided to candidates by state-owned mass media. Is this time to be paid for from the budget allocated by the election commission for the preparation and conduct of elections or is it to be paid for from budget funds allocated to the state-owned mass media? In our opinion such mass media must provide air time stipulated by law free of charge.
1.9. Grounds on which elections are declared null and void or to have not taken place. It is necessary to extend the list of grounds for declaring the elections null and void. At present elections can be declared null and void only «if violations committed in the course of voting or determination of voting returns do not allow the expression of the voters' will to be reliably determined.» We think that this only ground is not enough. A candidate may violate all kinds of rules of election financing and pre-election campaigning and not be called to account if the election commission does not manage to withdraw his/her registration (which is very difficult to do because of the complexities involved in the investigation of such matters). A provision laying down that elections may be declared null and void if candidates violate the rules of pre-election campaigning and of its financing can effectively encourage candidates to abide by law in the course of the entire election campaign, particularly during its final stage. A decision to declare the elections null and void on this ground must be taken by a court.
It is also necessary to consider inclusion in the federal law of a norm under which elections may be declared null and void by a court or a higher election commission with respect to the level of the elections when the special election law or the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» is violated not only during polling and vote count but also during the entire election campaign.
It is necessary to correct the formulation of the second part of Article 32 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» which refers the right to declare elections null and void to the jurisdiction of the district election commission. We think that this is not quire correct. This decision must be taken by the territorial or district election commission, the election commission of a Russian Federation subject, the Central Election Commission of the Russian Federation, depending on the grounds on which the elections are declared null and void. Moreover, we deem it necessary to submit for discussion a proposal to grant the right to declare elections in an electoral precinct null and void to the precinct election commission itself or to a higher territorial election commission.
Another question for discussion: must the federal law specify, as a guarantee of the electoral rights of citizens of the Russian Federation, a definite number of voters taking part in the elections as a percentage of the total number of voters included in the voters list, with which the elections are declared to have taken place? The following argument is used to support this point of view. At present, in some Russian Federation subjects there are legislative norms under which elections are declared to have taken place with any voter turnout . The norm of the federal law might raise the representativeness of bodies of state power and local government bodies and, considering the procedure for the formation of the Federation Council, the representativeness of the Upper House of the Russian Federation Parliament. On the other hand, it is easier for Russian Federation subjects to decide what voter turnout can ensure formation of an effective representative body and result in the election of the head of executive power.
1.10. One more problem is the development of the principle of an approximate equality of electoral districts. On the one hand, opinions are voiced that there must be exceptions from this rule to ensure the rights of indigenous and small ethnic groups. On the other hand, non-observance of this rule violates the constitutional principle of the equality of human and civil rights and freedoms regardless of the place of residence laid down by the second part of Article 19 of the Constitution of the Russian Federation. There are opinions that the aforementioned constitutional principle is also violated by Article 9 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» which makes it mandatory to form at least one electoral district in the territory of each subject of the Russian Federation during elections to the federal bodies of state power. In a number of cases, the application of this rule leads to the fact that inequality of one electoral district in relation to another is as great as tens of times. According to some opinions, the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» may be corrected to ensure that during elections of federal bodies of state power all electoral districts should be formed on an equal basis. In the opinion of the Draft Team, this proposal must be rejected because it creates conditions for infringing the rights of indigenous and small ethnic groups in the Russian Federation.
At the same time, laws of Russian Federation subjects often provide that formation of electoral districts should be based on the boundaries of territorial units. This approach conflicts with the requirements of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» which considers the administrative and territorial division to be an additional criterion, one of many circumstances to be taken into account in the formation of electoral districts which, and in any case, must run counter to the principle of approximate equality of electoral districts.
The recent federal elections have demonstrated that the principles of federal laws which govern the formation of electoral electoral precincts have fully justified themselves at the federal level and do not require any changes.
The Draft Team cannot agree with the proposals which are being made at present to remove restrictions with regard to an approximate equality of electoral districts at the level of regional elections but believes that this question is open to discussion.
At present, there are violations of the provision of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» concerning the approval of boundaries of electoral districts by the appropriate representative body. Thus, in Khakasia the boundaries of electoral districts were approved by the Presidium of the legislative (representative) body of state power of this Russian Federaation subject, in Kursk Oblast by the election commission. The federal law must establish the consequences of such violations.
1.11. There is a very topical question of recording and registration of voters. It is well known that the results of registration (recording) of voters residing inside and outside the Russian Federation serve as a basis for formation of electoral districts, electoral precincts, voters lists during elections of the President of the Russian Federation, deputies of the State Duma of the Federal Assembly of the Russian Federation; bodies of state power in Russian Federation subjects and local government bodies, for the development of the principle of an approximate equality of electoral districts.
A reason for inclusion of a citizen of the Russian Federation in the voters list in the given electoral precinct is his/her residence in the territory of the given electoral precinct determined under the federal law which lays down the right of a citizen of the Russian Federation to the freedom of movement and residence in the territory of the Russian Federation. Therefore, when making up the voters list the precinct electoral commission must record all voters registered with the bodies which perform registration of citizens (agencies of the Interior Ministry, bodies of local government) in the given territory.
At the same time, a voter included in the list at the place of residence, who, on the election day, stays in places of temporary sojourn (sanatoria, disease-prevention centers, holiday hotels, hospitals, etc.) has a right to cast his/her vote at the place where these institutions are located.
The combination of these two principles violates the provision of the law that a voter can be included in the list only in one electoral precinct and leads to «dual registration of voters.»
The following modifications and amendments are suggested to remove the resultant contradictions.
A reason for inclusion of a citizen in the voters list in the concrete electoral precinct is his/her permanent or predominant residence in the territory of this electoral precinct, as certified by the registration of the citizen at the place of residence in the given territory performed by the registration body as provided by the Russian Federation Law «On the Right of Citizens of the Russian Federation to the Freedom of Movement, Choice of the Place of Residence within the Russian Federation.»
Voters who, on the election day, stay at hotels, sanatoria, disease-prevention centers, holiday hotels, pensions, campings, tourist bases, in residential quarters and other places of sojourn are included in the voters list at the place of their location if they have an absentee voting certificate confirming their right to participate in the elections.
Voters who on the election day stay in hospitals, other permanent health care institutions and at the place of confinement of suspects and defendants are included in the voters list at the place of their location in accordance with the rules approved by the Central Election Commission of the Russian Federation.
Many problems arise when voters list are made up in electoral precincts formed outside the territory of the Russian Federation. The past election campaigns show that in several countries voters taking part in the voting are mostly people who were sent to these countries on business for long periods of time by Russian government agencies while participation of Russian nationals who permanently live abroad does not exceed 10% of the number of voters included in the lists. Therefore, it is worthwhile to consider the proposal made by heads of diplomatic missions and consular offices to include in the law a provision under which citizens who permanently live abroad would be included in the voters lists on request - such voters will be included in the voters list upon the application to the precinct electoral commission if they meet the necessary requirements.
In view of the fact that citizens of the Russian Federation who presently live abroad have different kinds of documents certifying their Russian citizenship it is advisable to indicate, in the appropriate norms, the list of documents on the basis of which precinct electoral commissions may include voters in the lists.
A system for registration of voters which is organized by the Central Election Commission together with election commissions of Russian Federation subjects under Articles 8 and 12 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» must ensure organizational and legal interaction of election commissions of all levels with local government bodies, organizations and institutions which carry out registration of the population.
At present, the Central Election Commission together with election commissions of Russian Federation subjects, executive bodies of all levels and local government bodies are preparing proposals on reorganization of the state system for registration of voters in the Russian Federation. The new system will ensure organizational and legal interaction of election commissions with local government bodies, organizations and institutions which carry out registration of the population. This work must be based on the wide application of the State Automated System of the Russian Federation «Elections» which allows the problem of «dual registration» of voters to be substantially reduced.
We believe it advisable to lay down in federal law the status of the State Automated System «Vybory» in the registration (recording) of voters and making-up of voters lists.
1.12. It is necessary to consider the possibility of legislative regulation of the organization of voting in remote and hard-to-reach regions of the Russian Federation, on ships at sea, the use of radio communication in the absence of other means of communication with such subjects of the election process.
In particular, precinct electoral commissions formed in such regions and on ships must be allowed to make election documents according to a form approved by the appropriate election commission and transmit the data of the protocol of voting returns by radio and the higher election commission must be allowed to determine the election returns on the basis of such protocols.
The introduction of this institute would also provide considerable economy of budget funds allocated for the preparation and conduct of elections.
Consideration must be given to a question of laying down the right of a Russian Federation subject to introduce in law an institution of absentee voting. This question has to be seriously studied from the organizational and technical point of view to ensure the principle of secret voting should be duly observed and the voters' will expressed in this way duly taken into account. Apparently, introduction of this institution will require correction of rules for making up voters lists and safeguarding of the voter's right to cast his/her vote personally.
1.13. The introduction of all aforementioned changes will make it possible to establish a full-fledqed system of guarantees of electoral rights of Russian Federation citizens. At the same time, the practical experience shows that even the current federal guarantees of electoral rights are not always reproduced at the level Russian Federation subjects. In this connection, it is also necessary to settle the question of establishing responsibility for non-compliance with the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation.»
Apart from making appropriate changes in the Criminal Code of the Russian Federation and the RSFSR Code of Administrative Offences to raise the responsibility of officials for violation or non-observance of electoral rights of citizens of the Russian Federation it is necessary to devise a mechanism to safeguard electoral rights of citizens of the Russian Federation when an election commission adopts decisions that conflict with law. As was already mentioned above, we believe it possible to grant the higher election commission the right to repeal decisions of a lower election commission in so far as they violate the electoral rights of citizens regardless of the level of elections, in accordance with the system of election commissions established by the Federal Law.
Election commissions shall be authorized to apply to a court for annulment of decisions of officials and organizations that violate electoral rights of citizens of the Russian Federation.
1.14. In our opinion, all modifications and amendments introduced in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» must comply with the principle of preventing democracy in the conduct of elections from being impaired. This concerns, for instance, safeguarding the principles of an equality of electoral districts and independence of election commissions, and ensuring equal electoral rights.
2. It has now become obvious that furtherance of the legal support of the election system calls for the drafting and adoption of several laws organically connected with the current electoral laws and refining the basic provisions thereof.
2.1. The practical experience gained from the conduct of elections of deputies of the State Duma and the President of the Russian Federation has demonstrated the need to improve the Federal Laws «On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation» and «On Elections of the President of the Russian Federation.»
The following two aspects of this work can be singled out.
The first aspect is conceptual. It includes questions relating to the combination of a majority and a proportional election system, procedure for nomination of candidates.
Apparently, it is necessary thoroughly to study the very principle of application of a mixed majority-proportional election system in the light of the real processes in the establishment of a multi-party system in Russia. This will make it possible to assess the possibility and advisability of a transition to a proportional election system in the Russian Federation and, consequently, conceptual modification of the Federal Law on elections of Duma deputies. On the other hand, however, it might be recalled that the world experience knows examples of a transition from a proportional to a majority election system.
It must be noted that the discussion of this question must be submitted for public discussion and maybe even to a referendum in the Russian Federation.
Consideration must also be given to the improvement of the proportional election system, taking into account the fact that, as shown by the recent elections of deputies of the State Duma, the 5% barrier established for electoral associations has has left the interests of about one half of the electorate without representation in the Duma.
Modifications and amendments must be introduced in law provisions which regulate nomination of candidates. We think that they must be directly linked with the way this question is treated in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation.
The other aspect of improvement of the aforementioned federal laws is organizational. Here one can speak about the urgent need to unify the norms regulating the preparation and conduct of elections on the basis of the modified Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation.»
This can be exemplified by the following problem. The Federal Law on Elections of the State Duma provides for early voting but makes no provisions for voting on the basis of absentee voting certificates. In the Federal Law on Elections of the President of the Russian Federation this problem is dealt with in exactly the opposite manner. The practical experience has shown that it is only the combination of these two principles that can adequately ensure the possibility to cast their votes for those voters who cannot go to the polls on the election day and to prevent «dual registration» in respect of voters who stay at sanatoria, holiday hotels, etc.
After the recent federal elections about forty election commissions of Russian Federation subjects have come up with a proposal to increase the number of members in precinct election commissions in electoral precincts with a large population. The number established by federal laws - 5 to 10 members was not enough to organize voting efficiently during the period of peak turnout and fully ensure the possibility of voting outside the polling station.
It must be remembered, however, that an increased number of members of a precinct election commission means increased expenditures from the federal budget.
Apparently, improvement of the electoral laws must aim, among other things, at finding sources of economy in the conduct of elections (one of the examples - election deposit).
It is necessary to discuss the problem of adopting legislative provisions to increase the period for the performance of some election acts and actions (for instance, the time limits for verifying compliance with law in signature collection and checking signature lists for correct execution) and, consequently, to increase the length of the election campaign.
Improvement of the two aforementioned laws is directly connected with the need for the earliest possible adoption of a federal law on political parties. This law must specifically regulate the legal problems of participation of parties in elections and, at last, keep away those public associations which, although they have gone through a simple procedure of registration with the Ministry of Justice of the Russian Federation, have no firm local footing and, as the realities of the past elections show, cannot win any significant public support.
2.2. The problem of appealing against actions and decisions of election commissions and their officials in courts and of participation of election commissions in court proceedings does not have an adequate legal basis either. It is necessary to adopt legislative provisions to lay down the right of election commissions to apply to a court when they find out that subjects of the election process committed violations of election laws making it necessary to declare the elections null and void, and establish the time limits for such application; to establish the time limits for appealing against decisions and actions of election commissions; to prevent the possibility of a complaint to be simultaneously considered in a court and in the higher election commission. It is necessary to establish the jurisdiction of courts in respect of decisions of election commissions in accordance with the level of the elections and to grant election commissions the right to challenge unlawful decisions of officials and organizations which violate the electoral rights of citizens of the Russian Federation. In this connection, the Draft Team believes that a law must be drafted on introducing modifications in the RSFSR Code of Civil Procedure and in the Russian Federation Law «On Appealing in Court Against Actions and Decisions Violating Civil Rights and Liberties.» Among other things, a separate chapter «Election Disputes» may be added to the RSFSR Code of Civil Procedure.
2.3. Speaking about the need to adopt additional federal laws ensuring the election process we cannot but touch upon a draft law «On Public Control over the Conduct of Elections and Referendums and on Publicity and Openness of Determination of Voting Returns» (this law has been adopted by the State Duma but has not been approved by the Federation Council) and the norms which regulate public control procedures in the Federal law «On Ensuring Constitutional Rights of Citizens of the Russian Federation to Elect and Be Elected to Bodies of Local Government.»
The current laws establish the legal, organizational and other means to ensure realization of electoral rights of Russian citizens, including public control, publicity and openness in the determination of voting returns. In the recent federal elections status inspectors alone (non-voting members of election commissions, authorized persons and observers from candidates, electoral associations and blocs) numbered up to 50 thousand. This was not the maximum possible limit. Under current legal norms the number might have been several times larger, particularly at precinct election commissions of which there are more than 90 thousand.
At the same time, we believe that several provisions of the Federal law «On Public Control...» must be incorporated in the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation,» specifically, the provision which lays down the right of voters to directly appoint public observers to monitor the polling (after resolving several other issues).
Another topical problem is to provide fuller legislative guarantees of the rights of observers, to establish the responsibility of officials for violation of legitimate rights of observers and non-voting members of election commissions, such as a refusal to issue a certified copy of the protocol of voting returns or to allow watching the vote count. It is also necessary to formulate more specifically the status of international observers.
2.4. We believe that it is necessary to adopt a law on financing of elections and referendums. Appropriate sections are contained in current election laws, but life shows that this is not enough.
In our opinion, this federal law must contain guarantees that would ensure observance of constitutional rights of citizens of the Russian Federation as regards financing of election campaigns both at the level of the Federation and at the level of its subjects. Moreover, such guarantees would provide adequate orientation in the legal regulation of elections to local government bodies.
The drafters of a federal law on financing of elections have to proceed from the fact that elections are essentially a public institution. Financing of elections cannot be regulated mostly by the norms of civil law although such regulation is admissible within certain limits. When the norms which regulate financing of elections come in conflict with norms of private law, the norms of the law on financing of elections should prevail.
The past election campaigns have raised several problems connected such financing.
For instance, the federal laws do not contain definite provisions which forbid any persons (with the exception of the candidate) to finance pre-election campaigning from any sources other than the election fund. It can be recalled that the eighth part of Article 45 of the Federal law «On Elections of the President of the Russian Federation» forbids any sources of money to be used for pre-election campaigning other than election funds only for candidates running for the office of the President of the Russian Federation and the tenth part of Article 52 of the Federal Law «On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation» imposes a similar ban only on candidates and electoral association.
Moreover, as was mentioned in the Financial Report on the Expenditure of Budget Funds Allocated for the Preparation and Conduct of Elections of the President of the Russian Federation in 1996 approved by Decision of the Central Election Commission of the Russian Federation No. 115/852-11 of October 8, 1996 and submitted to both houses of the Federal Assembly of the Russian Federation, at present, the law does establish responsibility for the violation of rules of financing pre-election campaigning which came to light after the date of the elections.
As was stated above, regulation of financing must cover not only pre-election campaigning but the entire election campaign which begins much earlier.
It must be pointed out that most countries with long-established democratic traditions have laws which regulate financing of election campaigns and these laws play an important role in the conduct of elections.
2.5. The practical experience gained from the past elections has also shown the need for adoption of the Federal Law «On the State Automated System of the Russian Federation «Elections.» The laws on the referendum and on elections of the President of the Russian Federation and deputies of the State Duma contain only one article which sanctions the use of an information system «solely for monitoring the progress and results of voting.» Even now it has become quite clear that the presence of only one such article is a luxury that the country cannot afford. It is necessary to make use of the possibilities of this unique system which has no analogues in foreign election institutions and to define these possibilities in an appropriate law.
We think that this federal law must
establish the legal status of the State Automated System (SAS) «Elections» as a federal system within the federal information network and the status of information resources of the country;
clearly define the organizational structure of the SAS «Elections», which would establish ownership of automation complexes at the concrete levels of the election system; the legal status of the structural divisions of the SAS «Elections»; their relationship and forms of interaction with each other, with election commissions, with appropriate bodies of executive power and local government bodies, with other agencies and organizations;
define the legal status of system administrators whose functions largely duplicate the functions of the heads of information centers and services;
establish the rules for the formation and use of databanks of the appropriate information divisions of the SAS «Elections» at each stage of pre-election campaigning and election campaigns;
determine the list of «external» users of the SAS «Elections», rules for accessing information stored in the databanks of the system, particularly, the information containing personal data, rules to prevent unsanctioned access and the responsibility for violation of these rules;
regulate the problems connected with public and state control over operation of the SAS «Elections,» over veracity and completeness of processed data;
provide for the use of automation complexes intended for the information support of the electoral system of the Russian Federation in the periods between election campaigns. This will provide fully legitimate possibilities to use expensive equipment for dealing with various economic, legal and other socially significant problems in addition to the tasks of the SAS «Elections.»
A federal law establishing the legal status of the SAS «Elections» and its component sections and regulating the whole gamut of relations arising in the course of development and operation of this system may crown all statutory acts effective now in this sphere.
A team of authors are now working on the draft federal law «On State Automated System of the Russian Federation «Elections.»
It is planned that the draft law will consist of the following six chapters:
1. General.
2. Status of the SAS «Elections.»
3. Status of the Federal Informatization Center, Information Centers and Services of the SAS «Elections.»
4. Main functions of the SAS «Elections» and the rules for the formation of databases.
5. Control over the use of the SAS «Elections.»
6. Development of the SAS «Elections.» At present, the work on this draft law is being completed so that in April of this year it might be submitted for public discussion.
3. Introduction of the aforementioned changes in the federal laws and adoption of new election laws will make it possible to ensure normal functioning of the electoral system in the Russian Federation and, among other things, to establish sufficiently full guarantees of electoral rights of citizens of the Russian Federation. However, one cannot speak about completion of this system so long as the Constitution of the Russian Federation does not lay down the principles of suffrage (universal, equal and direct elections by secret ballot).
The Constitution must also specify such questions as the age upon attainment to which a citizen of the Russian Federation gains an active electoral right, possible additional grounds on which a passive electoral right may be gained.
It is only these amendments to the Constitution that will allow the Constitutional Court of the Russian Federation to be involved in ensuring the compliance of constitutions and charters of Russian Federation subjects with the basic guarantees of electoral rights of citizens of the Russian Federation. At present, Russian Federation subjects (particularly the republics) do not understand clearly enough the hierarchic relations between the federal laws, on the one hand, and constitutions and charters of Russian Federation subjects, on the other, and provisions of such constitutions and charter conflicting with the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» actually and legally are not subject to constitutional control.
Constitutional-legal provisions are needed (both in the Federal Constitution, in the constitutions of the republics of the Russian Federation and in the charters of krais and oblasts) to formalize the unified and independent system of election commissions formed in the country and to grant the Central Election Commission the right of a legislative initiative on questions of electoral legislation.
Maybe, a separate section «Electoral System» should be included in the Constitution of the Russian Federation.
It must be pointed out that the question of the possibility of amending the Constitution of the Russian Federation may raise the problem of drafting and adoption of a federal constitutional law laying down the procedure for the formation of a Constitutional Meeting.
4. Such are, in the opinion of the Draft Team, the guidelines for improvement of electoral laws of the Russian Federation in the near term. We believe that in future the solution of most problems raised in this report will make it possible to deal with the problem of codification of electoral laws.
5. The complexity and magnitude of the problems denoted in this report require drafting and adoption of a special federal purpose-oriented program for improvement of electoral laws of the Russian Federation, which would set the deadlines for various stages of this work and indicate the methods of interaction between subjects of legislative initiative, election commissions as the main organizers of elections and jurists specializing in electoral law.
This program will make it possible to coordinate the efforts of all political forces and research institutions aimed at improving electoral laws for the accomplishment of a common objective - laying a high-quality, effective legal basis for the development of democratic institutions in the Russian Federation.
A.A.Veshnyakov
Head of the Draft Team for preparation of
draft laws to improve the electoral system
in the Russian Federation, Secretary of the
Central Election Commission of the
Russian Federation
| 
