«« Пред. | ОГЛАВЛЕНИЕ | След. »»
2. Index of Legal and Procedural Recommendations
On the pages that immediately follow, IFES has provided a grid which indexes the legal and technical recommendations which may be found throughout this report. The index is provided to better facilitate use of this report and to direct those who may have specific interests in particular aspects of the election process to the relevant sections of the report. Each recommendation is identified by a number, the first part of which, references the Chapter in discussion of the topic may be found. A brief summary of each recommendation is included, as is a reference to the article of law to which it pertains. Finally, IFES has identified the page numbers within the report where the full discussion of the issues or observations which prompted the recommendation may be found.
- The first part of the index relates specifically to proposals for legal reform which are offered for consideration.
- The second part of the index identifies proposals for procedural and administrative improvements which IFES believes would benefit the election system in the Russian Federation.
Constitutional Basis for the Election System
The legal foundation for democratic systems are often based on a hierarchy of rights. The Russian system is founded on basic rights guaranteed by the Constitution, which was approved by Russian voters on 12 December 1993. Russia's current Constitution includes the following fundamental guarantees affecting electoral rights:
Article 2: ... «The recognition, observation, and protection of the rights and freedoms of man and citizen are the obligation of the state.»
Article 13, Section 3: «In the Russian Federation, political pluralism and a multi-party system are recognized.»
Article 17, Section 2: «The basic rights and freedoms are inalienable and enjoyed by everyone ...»
Article 29, Section 1: «Everyone is guaranteed freedoms of thought and speech.»
Article 29, Section 4: «Freedom of the mass media is guaranteed. Censorship is forbidden.»
Article 30, Section 1: «Everyone enjoys the right to association... Freedom of activity of public associations is guaranteed.»
Article 31: «Citizens of the Russian Federation have the right to assemble peacefully, without weapons, hold rallies, meetings, demonstrations, marches, and pickets.»
Article 32, Section 1: «Citizens of the Russian Federation have the right to participate in managing state affairs both directly and through their representatives.»
Article 32, Section 2: «Citizens of the Russian Federation have the right to elect and be elected to state bodies of power and local self-government bodies, as well as to participate in referenda.»
Article 32, Section 3: «Deprived of the right to be elected are citizens recognized incapable by the court and also those detained in places of deprivation of freedom upon a court sentence.»
Further explication of rights and legal processes are provided in the Federal Law on the Basic Guarantees of Electoral Rights of the Citizens of the Russian Federation and specific laws for elections to the State Duma, Presidency of the Russian Federation and laws regarding election for subject and local offices.
Federal Laws Governing the Election of the President
Procedures for the conduct of the election of the President are fundamentally dictated by two federal laws which have been enacted since 1994: the Law on Basic Guarantees of Electoral Rights of Citizens of the Russian Federation, and the Law on the Election of the President of the Russian Federation. In addition, a number of other federal laws peripherally impact specific components of the election process. The include, for example, the Law on Mass Media, which has specific relevance to issues surrounding the pre-election campaigns and candidate access to the media. Provisions of the Criminal Code of the Russian Federation apply to cases involving certain election violations, and the Code of Administrative Misdemeanors imposes obligations and penalties on officials bearing responsibility for various aspects of the election process.
The Law on Basic Guarantees of Electoral Rights
On 20 December 1993, Russian President Boris Yeltsin issued a decree (No. 2227) establishing the Central Election Commission of the Russian Federation (CEC) as a permanent institution and directing the CEC to draft new federal legislation on elections. After consulting with legislative and political leaders and legal scholars, a consensus developed that a basic and preliminary law setting forth fundamental principles of democracy and enumerating voters' rights was an essential first step. Once enacted, this legislation would serve as the framework for all subsequent and specific elections laws at all levels of government. Throughout the drafting process, the CEC's Working Group on Election Law sought input from regional election authorities, parliamentarians and representatives of the executive branch. Some 25 constituency commissions submitted detailed reviews of the draft law and suggested specific modifications. Political parties were also encouraged to submit recommendations. The Federal Law on the Basic Guarantees of Electoral Rights of the Citizens of the Russian Federation was approved by the State Duma on 26 October 1994, approved by the Federation Council on 15 November and signed by the President on 6 December 1994. As anticipated, this legislation, which is unique within the former Soviet Union, serves to expand upon the basic guarantees to voters expressed in the Constitution and to lay the foundation for more specific requirements and procedures that flow by operation of succeeding laws for elections for executive and legislative offices at the federal, subject and local level.
The Law on Basic Guarantees of Electoral Rights encompasses a broad scope of fundamental principles upon which all other federal laws governing specific types of election must be based. Among the most significant rights guaranteed by this law are the following.
- the right to equal treatment under the election laws, the right to campaign, and the right to equal access to media and public facilities.
- In addition to these fundamental guarantees, the Law on Basic Guarantees of Electoral Rights also sets forth relatively specific procedural principles on which subsequent election laws are to be founded.
- The law addresses the issue of the preparation of voter lists and sets responsibility for their creation and maintenance with local authorities. The law also protects the rights of voters to be included on the list and to appeal decisions, errors or omissions which affect their franchise.
- Responsibility is vested in local authorities for the formation of electoral districts (constituencies) which are required to achieve relative equality allowing for a maximum deviation of 10 percent of average rate of representation relative to the existing administrative divisions. (A deviation of 15% is allowed in remote areas.)
- Local authorities are also assigned responsibility for the formation of electoral precincts which may serve no more than 3000 voters. Special provisions are made to accommodate polling at military installations, rest homes and other extraordinary polling sites.
- The Basic Guarantees law sets parameters for the composition and qualifications of members of the Central Election Commission, defines their primary responsibilities, and grants the commission regulatory authority regarding procedures for voter registration, tabulating election returns and election administrative and campaign funding.
- Foundations principles are defined for voting procedures and the general operation of electoral commissions. In particular, articles cover detailed descriptions of voting, counting and tabulation procedures, prohibitions against voting for other persons, procedures for guaranteeing the secrecy of the vote, and protections from undue interference or influence on the voting.
- The rights of citizens and election participants to appeal the decisions and actions of election commissions are articulated as are the general procedures for filing complaints.
- Procedures are generally defined for nomination and registration of candidates by electoral associations and blocs, including a requirement for use of secret balloting by electoral associations and blocs in selecting their nominees, and a procedure for direct nomination of candidates by voters;
- The law provides general coverage of rules and restrictions regarding campaign funding which encompasses financial support from funds of the federal budget and from private sources through voluntary contributions.
- Fundamental rights of candidates, electoral and public associations, and international observers to monitor the entire voting, counting, and tabulation process are defined.
- The law mandates the publication of election results within three months after an election as well as the preservation of voting materials for at least one year. The law also guarantees citizens and election participants immediate access to results and election documents for their examination upon request.
Federal Legislation on Election of the President of the Russian Federation
The original draft of the Federal Law on the Election of the President of the Russian Federation was passed by the State Duma on 12 April 1995. After an initial veto, the Federation Council passed the proposed law on 4 May 1995. President Yeltsin signed the approved bill into law thirteen days later. The main issue of dispute between the legislature and the president was the threshold of signatures required to nominate a candidate. The Presidential Administration favored a higher threshold of 2 million voters, while some factions in the Status Duma called for a 500,000 signature threshold. A compromise was worked out in committee (the Commission on Conflicts), setting the requirement at 1 million signatures. Comparison of the current law with its 1991 precedent is difficult, as the last presidential elections in Russia (at the time, the «Russian Soviet Federative Socialist Republic) were conducted for a republican level office, as opposed to a federal one. Moreover, the degree of specificity in the new legislation far exceeds that of its predecessor. The former law has a mere 17 articles, while the latter has sixty two.
Throughout this report specific provisions of the Law on the Election of President are discussed in detail. What follows is a discussion of general provisions which set the stage for presidential elections.
The Right to Vote and to Be Elected
The first article in the Presidential Law declares that the president is to be elected by a direct vote of the people. The 'people' in this instance is defined in article 3 and 24 as Russian citizens who are at least 18 years old. Those citizens who are legally declared incompetent or imprisoned are prohibited from voting. Citizens who are in prison awaiting trial are permitted to vote. Special provisions are made for military personnel and dependents, temporary residents, voters residing outside of Russia as well as those voters in rest homes, sanitoriums, hospitals and spas.
Any citizen over the age of 35 is eligible to run for President provided that person has resided in the territory of the Russian Federation for at least ten years. Citizens who have been declared incompetent by a court or who are imprisoned are ineligible. Previous legislation included a cap on the age of candidates seeking the presidency. Those over the age of sixty five were ineligible for office. Despite effort in the Parliament to retain an age ceiling, such a restriction is not found in the current law. In accordance with the post-Soviet Russian Constitution, the current law does stipulation that presidential candidates must reside in the territory of the Russian Federation for at least ten years.
The President is to be elected through a single federal election district encompassing the entire territory of the Russian Federation. The law reinforces the Constitution which sets the term of the president at four years.
Calling the Election
Article 4 of the Law on the Election of the President dictates that the Federation Council has the responsibility to call the date of the presidential election. Transition of power was not specifically addressed in the 1991 law and the new Law on the Election of President is not altogether clear in its provisions. In accordance with Article 92 of the Constitution, the winner of the Presidential election assumes office from the moment he takes the oath of office, and serves until the expiration of his term which occurs when a newly elected president is sworn in. Article 4 of the Law on the Election of President is somewhat confusing and seems to misrepresent the constitutional provision in this regard because it establishes the day for the presidential elections as the first Sunday «after the expiration of the constitutional term» for which the incumbent president was elected. In spite of this puzzling wording, the presidential law is clear in its requirement that the term from the day of setting the election and election day must be no less than four months. The date for the 1996 presidential election was set for 16 June.
In the event the President of the Russian Federation should terminate the fulfillment of his power before the expiration of his constitution term, the law dictates that the Federation Council shall set a special election to be held on the last Sunday before the expiration of three months following the early termination of fulfillment of powers. In this case, all election related time frames established in the law are reduced by one quarter.
If the President ceases to exercise powers due to resignation, health, or impeachment, Article 92 of the Constitution of the Russian Federation states that the duties will be temporarily filled by the Chairman of the Government (Prime Minister) and elections are to be set by the Federation Council for the last Sunday, three months from the date of premature termination of fulfillment of powers. Should the Federation Council fail to set elections under such circumstances, the CEC is tasked with announcing the election date. Some analysts have pointed to what they believe is a serious flaw in the legal frame work regarding early abdication of presidential powers. Specifically, there is concern that the Constitution fails to set criteria by which it can be determined that an incumbent president's health makes him incapable of carrying out the duties of his office. Nor is there provision that dictates by whom the final decision is to be made or by what instrument the resignation is made official. Article 92 also fails to describe how long the Chairman of the Government can temporarily fulfill the duties of the presidency before a new election must be called.
In the Chapters that follow, specific provisions of the Law on the Election of President are described and analyzed relative to the particular election component being discussed. In addition, recommendations are made for consideration by lawmakers and officials as they pursue procedural refinements and legal reforms.
«« Пред. | ОГЛАВЛЕНИЕ | След. »»
| 
