Review of the Court Rulings on the Cases Relating to the Matters of Funding Election Campaigns Conducted by the Running Candidates, Electoral Associations and Electoral Blocs
The elections held in the Russian Federation, after the entire body of federal electoral legislation was drafted and eventually approved in 1994-1995, came to show how effectively the dedicated oversight vehicles performed in their effort to monitor the financial dimension of the campaigns pursued by the running candidates, electoral associations and blocs. One of the crucial forms of that kind of oversight was the courts adjudicating on the appeals relating to the cases of breaches of the election campaign funding rules. One specific feature about the electoral disputes having to do with electoral campaign funding matters was that they came to be relatively infrequent. There are several reasons for that circumstance.
In the first place, financial infractions committed in the course of an election campaign are oftentimes not that easy to identify. This is primarily explained by an election campaign running relatively a short time, as well as by election commissioners being inadequately trained to tackle that sort of problems, and by election commissions lacking the right level of cooperation with the law enforcement bodies tasked to make sure that all financial transactions are carried out in keeping with the standing legislation.
As a rule, this category of cases are initiated either by the election commissions that seek to have sanctions imposed on the running candidates, electoral associations and electoral blocs violating the existing campaign funding rules or by the candidates appealing against the decisions passed by the election commissions to slap sanctions on the candidates or call the elections invalid. Hence, such electoral disputes are necessarily brought to the level of legal proceedings by proactive moves of the election commissions seeking in the first place to reveal the cases of relevant financial infractions and impose punitive sanctions on the culpable running candidates pursuant to the standing Russian laws. In the course of an election campaign, the running candidates, electoral associations and electoral blocs are not always properly equipped (both in terms of the time available and in the way of legal, administrative, information or communications resources put at their disposal) in order to prove the facts of their rivals breaching the standing election campaign funding rules. Though we do have a back-up option to appeal against the decisions on election results in view of the financial infractions revealed, that alternative strategy of finding solutions to electoral discords does not appear to be fully in line with the essence of electoral campaigning. So, what actually is lacking today is the legal initiative emanating from the running candidates, electoral associations and electoral blocs - a most powerful factor underlying any and all judicial disputes on election campaign matters.
Admittedly, a meaningful role in limiting the scope of financial disputes was played by the current electoral legislation containing a whole range of loopholes enabling the election participants to escape from the penalties applicable for their financial irregularities in the course of campaigning. What is more, direct constraints or bans have often been bypassed through the use of indirect financing schemes or strategies designed to take advantage of the cash amounts left unaccounted for, etc. Admittedly, the problem is found to be endemic not only in Russia but also elsewhere.
One of the higher-profile court cases involving breaches of the rules to build and expend election campaign funds was made by the case on overruling the decision of a district election commission to have Mavrodi E.A. registered as candidate for a deputy seat in the State Duma of the Federal Assembly of the Russian Federation. The matter was appropriately considered by a court on civil cases, the Tula oblast court, the action being initiated by the relevant district election commission.
Then the district election commission came to reveal a host of infractions of the rules to build and expend the resources held by the E.A. Mavrodi election campaign fund. Contributions to the special bank account opened for the purpose of growing an election fund were made by way of some Tula residents, that visited the given branch of the Savings Bank (Sberbank), each receiving a total of RR1.5 million from an identified person. Following that transaction, the given Tula resident would place the received amount on the candidate's bank account for a commission of RR 20 thousand. In the course of just two business days, the local militia revealed at least twenty cases of that sort of transactions. According to the court, under the given circumstances the election campaign fund failed to be raised through attracting voluntary donations of private individuals, for the given individuals were found to be contributing other people's money, and for a certain consideration at that.
Apart from that, Mavrodi E.A.'s agent Yakhin Kh.A. received from unidentified individuals a total amount of RR 140 million and had it contributed to Mavrodi E.A.'s election campaign, with part of the money being put on the candidate's special bank account. The court determined that, on receiving an anonymous contribution, the candidate's agent made arrangements for the money to be contributed to the relevant campaign fund rather than transferred to a public account.
Also, it was proven that the running candidate and his agent had the election campaign financed through the use of resources other than those of the registered campaign fund. The proof is that, following an agreement between E.A. Mavrodi and the canvasser in question to run a campaigning drive, the latter would receive RR 3000 on the spot without the agreement being appropriately filed and the expenses duly accounted for.
The candidate's agent Yakhin Kh.A. withdrew all the money from the special bank account well before the election day and used the resources for purposes other than those of election campaigning.
So, the court found the candidate guilty of having violated Article 46 (Parts 3 and 4) of the federal law «On electing deputies of the State Duma of the Federal Assembly of the Russian Federation» under which the registered candidates and their authorized agents shall not hand over to their voters any cash amounts, gifts or other tangible valuables except as remuneration for their individual inputs in the course of the relevant election campaign drive (manning work stations at election precincts, collecting voter petitions, etc.), as well as Article 52 of the said federal law under which an election campaign fund can be raised through the use of voluntary contributions made by either private individuals or legal entities, anonymous donations shall be placed on public accounts, and the running candidates shall only use for their campaigning purposes the resources contributed to their election funds. Following the proceedings, the court upheld the action of the district election commission on deregistering E.A. Mavrodi as candidate for an elective office. The ruling was confirmed by a higher court on civil cases, the Supreme Court of the Russian Federation, following a detailed consideration of the appeal.
As we look into the scene related to deregistration of E.A. Mavrodi as candidate for an elective office of a Duma deputy, we should primarily pay attention to the following circumstances. Motivated by the desire to be successful, the arrangers of E.A. Mavrodi's campaign drive sought to infuse in the voter-handling effort the maximum amount of resources held by the candidate's support team. However, the election campaign regulatory philosophy of the federal law on electing State Duma deputies essentially is that centralized financing sources should be limited. Hence, the candidates with no adequate public support in that or other election district (the observation being applicable to private individuals, public associations and legal entities) invariably come to face the problem of legalizing at least a portion of the actual funders of their election campaigns.
Such kind of dealings essentially run counter to the Russian laws. However, infractions (involving assorted schemes to have election campaigns financed with the use of resources other than those held by the established campaign funds, just like taking advantage of unlawful funding sources and spending for the campaign needs in excess of the authorized ceilings, to say nothing of the moves undertaken to buy votes, etc.) of the existing electoral legislation do not always come in the forms that can promptly be exposed either by election commissions or law-enforcement bodies. Oftentimes, things would be compounded by the running candidates or other campaign participants seeking to get their illegal dealings covered with transactions that appear to be fully in line with the law.
To provide an example to this effect, it would be in place at this point in time to refer to the civil case initiated by the Saint Petersburg election commission seeking to overrule the decisions of the district election commissions to grant registrations to Kokko D.A. and Nekhayev O.I. running for deputy seats in the Saint Petersburg legislative assembly. The case was adjudicated December 4, 1998 by a Saint Petersburg city court on civil cases. In the course of the legal proceedings, representatives of the Saint Petersburg election commission were advised to the effect that the said candidates entered into the agreements with their voters in order to have the latter committed to campaign for the given candidates. Under the terms of those agreements, a voter would receive RR 15 (RR 35 in the event of the candidate's victory) as a bonus, which effectively amounts to exercising a measure of influence on the voters towards committing them to go to the polls and cast their votes in favor of the desired candidate. According to the election commission, the given agreement's carrying a clause to the effect that a running candidate has the right to enter into that sort of arrangements with the voters merely attests to the given agreement being a phony and fictitious deal.
The running candidates claimed that the agreements had been concluded between the given candidate referred to as the customer on the one hand and a voter referred to as the contractor on the other. The subject matter of the given agreement was the contractor's engaging in an effort to campaign for the given candidate. Under the terms of such an agreement, the contractor would spread the election campaign materials containing the candidate's resume and campaign platform. In addition, an option was made available for similar agreements to be concluded with the contractor's family members.
The court determined that, proceeding from the language of the agreement, it was impossible to explicitly conclude that the given voter's freedom of expression happened to be meaningfully constrained, for the agreement contained no clause that would be read as committing the voter to cast his or her vote for the candidate in question. The election commission's arguments to the effect that those agreements were used to exercise pressure on the voters and amounted to violation of the provisions under Article 3 of the federal law «On basic guarantees for the voting rights of citizens of the Russian Federation» were passed as unfounded. Then, the court determined that neither of the provisions of the said federal law placed any ban on the form of election campaigning that would involve efforts to get individual voters committed by dedicated agreements to push election campaign materials and be remunerated for that job accordingly. The court also noted that, although the provisions under Article 45 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum» contain a ban on any effort to exercise pressure on voters or referendum participants in the course of the election campaign by way of either handing out certain cash amounts, gifts (following the voting returns released) or any other tangible valuables, that constraint primarily had to do with the candidate-voter legal relations sphere. For the case in point the court stated that it was all about an agreement with a canvasser-contractor to run an election campaign drive. In the end, the Saint Petersburg election commission's civil action to overrule the decisions of the district election commissions was effectively left unsatisfied.
So, in conformity with the court ruling, the evidence was insufficient and the candidates were not found guilty of violating the standing election campaign funding rules in the form of buying the votes. However, the ruling should in no way be interpreted so as to draw a general conclusion that the given techniques of voter-working could be passed as legally immaculate. The matter is that the issue of breaching the provisions under Article 45 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum» did not come for the court as the principal point in assessing the evidence and arguments of the sides, for in the course of the Saint Petersburg legislative assembly elections the provisions of this federal law (bearing on the matters of election campaigning and relevant funding) were not made applicable (see Clause 3, Article 66 of the given federal law). Should there have been more weighty arguments to prove that the cash amounts received by the voters from the running candidates were never intended for supporting the election campaign, that is generally built around scheduled functions and events, but rather were lump-sum handouts designed to compel the given voters and their family members to cast their votes as requested, the court would have necessarily had to admit that the use of that form of contractual arrangements between the running candidates on the one hand and voters on the other expressly served to cover up a secret deal amounting to an act of buying the votes and running counter to public and state interests.
This court ruling on the campaign agreements with the voters was not concurred by the Saint Petersburg public prosecutor's office. In his memorandum to the Central Election Commission of the Russian Federation on the need to rule out any breaches of the existing electoral legislation, the city's public prosecutor pointed out that in the course of the past election campaign the running candidates entered into agreements with the voters to conduct focused campaign drives, and that those arrangements for all practical purposes amounted to a form of buying the votes. Admittedly, under the agreements, the voters were not committed to cast their votes for any specified candidate and their compensation packages were made conditional on the given candidate achieving a win in the elections. That memorandum, among other things, referred to the case when one of the running candidates and his agents entered into agreements with the voters in order to have the latter committed to spread the campaign literature carrying the given candidate's CV briefs and campaign platform. However, on handing out an amount of RR 15 to each one of a group of voters and promising to pay out an individual bonus of RR 35 in the event of his getting elected deputy of the Saint Petersburg legislative assembly, the «Customer» failed to provide the contracted voters either with any campaign literature for distribution or specific tasks to back up his election campaign. Asked about his commitments under the campaign agreement, one voter responded by just admitting that his job was for him, his relatives and friends to go to the polls on election day and cast their votes as requested. The materials collected through a special investigation clearly showed that the given candidate, his authorized agents and campaign staffers operated to deny people their freedom of expression and by way of buying up their votes in the course of elections for the Saint Petersburg legislative assembly. The evidence was duly acted upon by the city's public prosecutor in order to bring a set of criminal suits against the offenders in keeping with Clause 2, Article 141 of the Criminal Code of the Russian Federation.
It needs to be emphasized that the court proceedings on the vote-buying cases have experienced some shifts of late, following the passage of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum». It would suffice to refer to a court order issued pursuant to the federal law «On basic guarantees for the voting rights of citizens of the Russian Federation».
Acting on the appeal from Matveeva S.B., the Magadan oblast court considered the case of invalidating the results of the May 18, 1997 elections for the Magadan oblast Duma per election district No. 15. Elected Duma deputy by that district happened to be A.A. Basansky. The appellant sought to have the elections passed invalid on the grounds that A.A. Basansky and his support team grossly violated the «vote-buying» bans. Given that those violations allegedly were massive in scope, the task of determining the voting results with a fair degree of certainty appeared to be unachievable. The appeal also read that immediately before the election day A.A. Basansky, his support team and staffers of the firm, that he managed and owned, arranged for free handouts off the roving vehicles of beer bottles and nonalcoholic beverages in a number of local townships and settlements and even went as far as provide for home deliveries of the aforementioned goods invariably accompanied with the «Vote for A.A. Basansky» leaflets. While appearing before the district election commission, A.A. Basansky explained that the free-of-charge handouts of beer and kvass (Russian nonalcoholic beverage) bottles on May 15-16, 1997 were in the first place intended to promote the new products, that the action was exclusively undertaken by his firm's marketing department, and that he personally had nothing to do with the idea of promotional handouts of the products.
The court ruled that, given the character of violations of the electoral legislation and a large lead of the vote1 secured by the candidates running for Magadan oblast Duma seats in election district No. 15, to say nothing of the absence of any sort of violations of the electoral legislation on the balloting day, the Matveev appeal-contained charges were not found sufficient for the court to challenge the election results and proceed to overturn the decision passed by the relevant district election commission and Magadan oblast election commission on determining the overall results of the elections for the Magadan oblast Duma.
While assessing this particular court order, it needs to be underscored that in keeping with the provisions of the federal law «On basic guarantees for the voting rights of citizens of the Russian Federation» the grounds were by far insufficient for the election results to be invalidated. The federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum» (Article 64) carries a detailed list of electoral legislation infringements calling for invalidation of election results. This degree of regulation enabled the courts to proceed from the circumstances at hand and pass tough rulings on the facts of vote-buying, with election-invalidation orders making no exception.
Admittedly, when it comes to the question of measuring the overall impact of vote-buying on the voting returns, the experience of applying the relevant provisions of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum» (Articles 58 and 64) is just beginning to emerge. Here are some examples of court rulings to that effect.
The candidate for a deputy seat in the State Assembly of the Republic of Mariy El Baraniuk A.A. appealed against the decisions of the district election commission and the Republic of Mariy El election commission that passed the election in the relevant election district invalid on account of the infractions of the standing electoral legislation committed in the course of campaign by the running candidate Baraniuk A.A. and in view of the confirmed facts of vote-buying in favor of the said candidate. The mater was considered by a court for civil cases, the Supreme Court of the Republic of Mariy El.
The court passed Baraniuk A.A.'s appeal as ungrounded and left it unsatisfied for the following reasons. As it was determined, an effort was under way within the territories of a number of polling precincts on election day to buy votes in favor of Baraniuk A.A. by way of handing out vodka bottles. The evidence was duly made available by a number of local witnesses. The court came to the conclusion that these violations served to effectively impact the voting returns, particularly given that within the said territories the appellant secured as many as 455 votes which assured him a lead of 228 votes in his electoral district as brought against the running candidate Popov I.I. who nonetheless managed to achieve 468 votes overall. Given the circumstance, he court concurred on the election commissions ruling to the effect that it was impossible to measure the will of the people with a fair degree of certainty. The appellant's argument that it had never been determined who actually did the vote-buying (the running candidate, his authorized agents or some other individuals) was passed as legally irrelevant since under the current legislation the very fact of an infraction of the standing electoral laws and the associated risk of inability to correctly determine the election results are enough to declare the given elections invalid.
In addition, the court pointed out that in the course of the election campaign the given candidate engaged in charity pursuits within his electoral district, with the charity operations being primarily financed by the companies under his management. In accordance with the law of the Republic of Mariy El «On electing deputies for the State Assembly of the Republic of Mariy El», that sort of engagements were passed as abuse of the office-related powers and could very well provide the grounds for a legal action to be brought against the candidate in order to have him duly deregistered and removed from the list of those running for an elective office.
So, the principal conclusion of the court boiled down to the following: irrespective of whether the given candidate or his/her authorized agents were proven to have been engaged in vote-buying, the numerous facts of vote-buying in favor of certain candidates within the confines of a number of polling precincts are sufficient to attest to the potential inability to truthfully determine the results of the balloting in the given electoral district, thereby providing the grounds for the elections to be invalidated. In our judgment, the court took advantage of the broad interpretation of the provision of «inability to believably determine the balloting results» which can only be applied when infractions of the electoral legislation come to be uncovered on a massive scale, particularly the infringements relating to the vote-buying schemes. However, we do maintain that under the given circumstances the court was supposed to come up with weighty and convincing arguments to effectively prove the inability to believably measure the will of the electorate within the confines of an entire electoral district and rule out the possibility of invalidating the voting returns within just a single or several polling precincts.
Of some interest is the case initiated on Klimentyev A.A.'s appeal against the district election commission of Nizhnv Novgorod ruling to invalidate the results of elections for the head of local administration.
Klimentyev A.A., registered as candidate running for the office of mayor of Nizhny Novgorod, appealed against the decision of the local district election commission. In particular, he claimed that the entire election campaign had not had a single meaningful violation of the standing electoral legislation that would make it impossible to believably determine the election results.
The court chose to turn down Klimentyev A.A.'s appeal on the grounds of its being unfounded. To confirm the decision to invalidate the elections, the court, among other things, referred to violations of the provisions under Clause 3, Article 45 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum» which expressly bar the running candidates from influencing the voters by way of promising to hand over to them certain amounts of cash or tangible valuables, or provide services on the conditions other than those stipulated by the current laws. In particular, the court determined that Klimentyev A.A.'s campaign platform carried a promise to have the level of living standards of Nizhny Novgorod residents raised by as much as 18 percent within 100 days of his assuming the mayor's office. Then, the Orthodox Church-themed calendar, released in the days of campaigning, held a message to the effect that those voting for Klimentyev actually choose to have their pension benefits raised by 25 percent. Those promises were passed by the court as the federal law-proscribed moves to exert pressure on the electorate by way of promising handouts of money or material assets.
Apart from that, the court determined that Klimentyev A.A.'s campaign platform carried the promises to slash the gas rates by 10 percent within 120 days, electricity and natural gas rates by 20 percent. These campaign promises were regarded by the court as the law-proscribed moves to exercise pressure on the voters through the use of promises of services on the conditions other than those stipulated by the existing election laws. Then, it was pointed out that in keeping with the existing legislation it was the cognizant bodies of the subjects of the Russian Federation rather than local administrations2 that exclusively had the right to set the electricity and natural gas rates for the population.
The court stated that the unlawful promises to hand over cash amounts or material assets to vast numbers of voters, or provide services under the conditions other than those stipulated by the current laws definitely served to exercise pressure on the voting returns in favor of the given candidate. It was also uncovered that Klimentyev A.A. and some other candidates committed other violations of the existing campaigning rules.
In the end, the court ruled that, given the slight two percent gap between the votes secured by the winner on the one hand and the second-best contender on the other (Klimentyev A.A. and Gorin V.N.) as well as in view of major law infractions that swayed the electorate's p[references, it was impossible to believably determine the election results.
As they proceeded to verify the compliance with the electoral legislation in the area of campaign funding practices, the election commissions would normally take advantage of differentiated approach to the policy of law-prescribed sanctions whenever they came to be convinced of the running candidates having committed relevant funding illegalities. By way of example, the district election commission in the elections for the State Duma of the Federal Assembly of the Russian Federation in the Engels single-mandate district issued a warning to the running candidate Aleshina M.V. about the statutory requirement for all candidates to abide by the standing rules for paying the expenses of printing and releasing election campaign materials. To add, the election commission also advised Aleshina M.V. to the effect that the relevant law infractions made sufficient grounds for the guilty candidate's deregistration.
The uncovered financial infringements came to be of the following character. The printing house «IPPOLiT» completed an order for fabrication of 1000 propaganda leaflets and 100 calendars in support of the running candidate Aleshina M.V. As it was disclosed, the cash payment for the order had been received by Vasilyeva, a local entrepreneur, which amounted to violating Clause 4.33 of the July 28, 1995 directive «On the rules for building up and expending resources out of the electoral funds commanded by the candidates, electoral associations or electoral blocs in the elections for the State Duma of the Federal Assembly of the Russian Federation» issued by the Central Election Commission of the Russian Federation. The Directive explicitly requires that this sort of transactions should be carried out through non-cash transfers of the amounts due from the given candidate's special bank account directly to the contractor's bank account.
Aleshina M.V. appealed against the district election commission's decision in the belief that she had in no way violated the established rules for funding an election campaign. The appeal was duly considered October 16, 1998 by a Saratov oblast court on civil cases.
Following the explanations given by Aleshina M.V.'s agents, the court determined that on September 5, 1998 Aleshina M.V. placed an order for fabrication of the campaign leaflets and calendars. The cash payment for the job was received by Vasilyeva, a private individual holding the company «Vasilyeva», though the order was accomplished by the printing house «IPPOLiT'. The court ruled that the running candidate Aleshina M.V.'s actions relating to expenditure of the campaign funds in order to provide for manufacture of the propaganda leaflets and her entering into an agreement with the private company «Vasilyeva» for the purpose of making a cash payment for the contracted job obviously run counter to the provisions of the federal laws «On electing deputies for the State Duma of the Federal Assembly of the Russian Federation» and «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum», as well as disagree with the aforementioned directive on campaign funding matters issued by the Central Election Commission of the Russian Federation.
The court rejected the arguments put forward by Aleshina M.V.'s agents to claim that an agreement with Vasilyeva actually allowed for cash payments for the services rendered pursuant to Clause 4.4 of the aforementioned Central Election Commission directive setting the rules for agreements with private individuals. The court particularly pointed out that under the circumstances cash payments for the services rendered were out of the question, for the given agreement was concluded with Vasilyeva posing as an entrepreneur rather than a private individual. In accordance with Clause 3, Article 23 of the Civil Code of the Russian Federation, the entrepreneurial activities pursued by citizens of the Russian Federation, that choose not to register as legal entities, generally fall within the scope of the rules designed to regulate activities of commercial organizations unless stipulated otherwise by the current laws, statutes or legal practices.
So, the court explicitly confirmed the illegality of cash payments for the manufacture of propaganda materials. Admittedly, the infractions relating to the candidates making cash payments for the campaigning purposes are usually rather difficult either to identify or terminate. That sort of violations, of course, serve to devalue the very credibility of the institute of electoral funds. Hence, the constraints on cash payments out of the registered electoral funds come to be fully in line with the spirit and letter of the relevant federal laws and directive of the Central Election Commission. The established rules for paying the expenses of the running candidates throughout their election campaigns allow to fully document and appropriately track all relevant transactions.
Legal sanctions against the candidates, that have breached the campaign funding rules, are imposed in conformity with the procedures stipulated either by the federal laws or relevant statutes of the subjects of the Russian Federation. To provide an example in this regard, one should refer to the cases adjudicated by the Pitkiarant city court in the Republic of Karelia and a court on civil cases, the Supreme Court of the Republic of Karelia, in connection with Makarevich A.I.'s appeal against the decision passed by the Pitkiarant territorial election commission in order to deregister Makarevich A.I. as candidate running for a deputy seat in the Legislative Assembly of the Republic of Karelia on account of the given candidate violating the established campaign funding rules.
The Pitkiarant city court determined that following his registration with the local election commission as candidate running for a deputy seat in the Legislative Assembly of the Republic of Karelia Makarevich A.I. opened a special account with the Pitkiarant branch of the Savings Bank (Sberbank) that eventually attracted RR 5000 expendable for the candidate's campaigning purposes. In the course of the election campaign, the candidate used RR 1800 of that amount and had the balance of RR 3200 withdrawn on July 24, 1998. The court also determined that Volkova and Mazurovsky, unregistered staffers of the candidate's support team, prepared and made arrangements for the «Novaya Gazeta» newspaper (Pitkariant's local daily) to carry a promotional piece in support of the running candidate Makarevich A.I. The service was valued at RR 8000, with the money being delivered to the newspaper's cashier's office by Kondratyev, the candidate's relative. When the promotional material appeared in print on July 24, 1998, Makarevich A.I. paid back RR 8000 to his relative. However, he used his personal funds rather than the resources out of the registered electoral fund held by the candidate's special bank account. It was also determined that in the course of the election campaign the running candidate Makarevich A.I. sustained other expenses related to the fabrication and distribution of propaganda materials. By way of example, on July 23, 1998 the Karelian television network's «Ekran dnia» (Today show) program featured a pay-commercial in support of Makarevich A.I. Before July 20, 1998, the local newspaper «Severny Kurier» (Northern courier) carried a pay-propaganda material in favor of the candidate Makarevich A.I. Also, there had been commercially-supported programs run by the Pitkiarant cable television network with Makarevich A.I. in attendance. In addition, a total of RR 8768 was paid for the propaganda materials carried by the «Novaya Ladoga» newspaper in support of the running candidate. Meantime, merely RR 1800 was withdrawn from the candidate's special bank account to provide for campaign commitments.
The court ruled that the candidate had committed a number of financial infractions in the form of using for the purposes of campaigning the resources other than those held by his personal electoral fund. In the end, the territorial election commission's decision on deregistering the running candidate Makarevich A.I. was confirmed as fully grounded. A court on civil cases, the Supreme Court of the Republic of Karelia, duly considered Makarevich A.I.'s appeal, examined the relevant materials and found sufficient grounds for the Pitkiarant city court's ruling to be overturned for reasons of the material rights3 being breached. In particular, it was pointed out that the court had actually ignored the circumstance that the elections for the Legislative Assembly of the Republic of Karelia are governed pursuant to the Republic of Karelia law «On electing deputies for the Legislative Assembly of the Republic of Karelia». Clause 7, Article 34 of the law stipulates that, should the running candidate be found to have used for campaigning purposes the resources other than those held by his/her electoral fund, the relevant election commission has the right to initiate a legal action for the candidate in question to be deregistered. Admittedly, this rule in no way runs counter to the relevant provisions of either the Constitution of the Russian Federation or Article 1 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum». In conformity with Clause 3, Article 1 of this federal law, the subjects of the Russian Federation are free to issue their own regional statutes to provide for assurances of the voting rights in order to complement the guarantees established by the federal laws.
The republican court on civil cases concluded that, inasmuch as the Republic of Karelia law «On electing deputies for the Legislative Assembly of the Republic of Karelia» holds additional guarantees for the voting rights and the case in question was related to the elections of deputies for the Legislative Assembly of the Republic of Karelia, it was necessarily the republican law that had to be applied. Under the relevant law, the election commission had no right to rule singly and deregister the candidate on the grounds of his using for campaign purposes the resources other than those held by his electoral fund. Then, the republican court pointed out that Makarevich had actually not exceeded the spending limits set by the law for campaigning purposes.
As we make assessment of the republican court's determinations on the case under consideration, we have to admit that not all of the conclusions appear to be perfect. In particular, the candidate's spending for campaign purposes within the established limits should in no way rule out the charge of unlawful commitment for campaign purpose of the resources that had never been placed on the candidate's special bank account.
Incidentally, this case had a sequel to it. Following the republican court's decision, Makarevich A.I. appealed to the city court against the decision passed by the Pitkiarant territorial election commission to invalidate the election results and demanded that the balloting results for the given electoral district should be passed as valid. The city court ruled to satisfy Makarevich A.I.'s suit on the following grounds. Having ruled to deregister the running candidate Makarevich A.I., the territorial election commission effectively barred him from taking part in the elections, thereby violating the provisions of the relevant legislation of the Republic of Karelia. In fact, the election commission had undertaken the moves that subsequently prevented the possibility to believably determine the electorate's choice. The court pointed out that by the day Makarevich A.I. was deregistered, 37 out of the total of 162 early votes had already been cast in favor of Makarevich A.I.
When it comes to the question of Makarevich A.I. spending the resources that happened to be outside of his electoral fund, the court found out that the winning candidate had likewise used cash payments for his election campaign purposes. Meantime, Makarevich A.I. admitted that he had intended to fully account for his campaign expenses after the elections, which actually is in line with the existing electoral legislation. As he attempted to contribute RR 15,000 to his electoral fund, the election commission ruled to have Makarevich A.I. stripped of the running candidate status, thereby preventing him from growing his special bank account. It was specially underscored that the Republic of Karelia law «On electing deputies for the Legislative Assembly of the Republic of Karelia» allows the republican central election commission to extend post-election the timelines for the deputies to complete their financial transactions related to the campaigning commitments and submit the statutory accounts.
Notably, the reference to this particular legal provision (which is similar to the rule contained by Clause 13, Article 52 of the federal law «On electing deputies for the State Duma of the Federal Assembly of the Russian Federation») appears to be unfounded. Making financial transactions to pay the expenses of the campaigning drive does not exclusively fall within the scope of the given candidate's responsibilities. This task is authorized only by the relevant election commission. In this particular case, such an authorization is out of the question. What is more, one should bear in mind that the election campaign expenses can only be covered with the use of resources placed on the candidate's special bank account, for all resources, that are used to build up the candidate's electoral fund, are supposed to be put on a special bank account as required by the provisions under Clause 6, Article 47 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum». Early payments to meet the campaign expenses in circumnavigation of the special bank account (though with the proviso that the relevant transactions would subsequently be filed to go via the special bank account) clearly run counter to the provisions of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum». Should one embark on the path of defending this kind of arrangements as legitimate, one might end up concluding that any and all financial settlements with the use of cash payments for election campaign purposes, that could subsequently be cleared via the candidate's special bank account, should be passed as legal. This vision of the institute of electoral funds nearly wholly rules out the possibility for election commissions to verify candidate compliance with the established election campaign funding rules.
When this case was reviewed by the court on civil cases, the Supreme Court of the Republic of Karelia, the decision of the city court was passed as fully founded. In particular, the republican Supreme Court pointed out that, though cash payments for campaign purposes did amount to infractions of the law, such infringements were known to be occasionally committed by other running candidates4 too.
The experience collected over the years of holding elections in the Russian Federation teaches that timely official reports released in the course of election campaigning on the expenses sustained and covered by the candidates, electoral associations or electoral blocs appear to be most relevant. Understandably, disclosure of that information only after the elections makes it nearly impossible to timely put in check the uncovered illegalities that have to do with campaign funding matters. This observation could very well be illustrated by the case adjudicated February 9, 1999 by a court on civil cases, the Supreme Court of the Russian Federation, on the private appeal from Chistokhodova R.V.
In keeping with the December 3, 1997 ruling of the Supreme Court of the Republic of Komi (with the ruling being left unmodified in the May 19, 1998 determination of the Supreme Court of the Russian Federation), Chistokhodova R.V.'s appeal against the unfounded actions and inaction on the part of the Republic of Komi's election commission in the elections for the head of the Republic of Komi was rejected, just like her demand that the elections should be invalidated.
Then, Chistokhodova R.V. once again appealed to the same court to review the case on account of new evidence being disclosed. In particular, she maintained that following the original court ruling on her case, she came to know that in the election campaigning period the «Krasnoye Znamia» (Red banner) newspaper had carried 14 propaganda materials in support of the candidate Spiridonov, the incumbent head of the Republic of Komi seeking a reelection, with 12 of those pieces appearing on a commercial basis. To add, the same newspaper also carried repeated commercial ads advising the readers of Spiridonov's special bank account for the electoral fund to be grown. According to Chistokhodova R.V., those commercial materials were paid for by Spiridonov, which fact came to her attention on August 25, 1998 after she had received the documented rates for publication of commercially-based propaganda materials in the given newspaper and after she had familiarized with Spiridonov's financial account carried by the January 20, 1998 edition of the «Respublika» newspaper.
Notably, the Supreme Court of the Russian Federation failed to see any grounds for overruling the decision of the Supreme Court of the Republic of Komi. The Supreme Court of the Russian Federation also pointed out that the Supreme Court of the Republic of Komi had had good reasons for rejecting Chistokhodova R.V.'s appeal to review the earlier (December 3, 1997) ruling of the same court because the circumstances referred to by the appellant could not be viewed as new evidence or passed as material with regard to the given case. The materials carried by the «Krasnoye Znamya» newspaper were for all to read an to see in the days of election campaigning, and there were absolutely no obstacles that would seemingly keep one from referring to those publications in the course of the legal proceedings. Meantime, it was pointed out that infractions of the rules committed by the election commission, as it proceeded to release Spiridonov's post-election financial account, had already been considered by the court and could not be revisited. As far as the account proper is concerned, it was judged to be wholesome and trustworthy.
While refraining from making an assessment as to how heavily those newspaper materials (that were defrayed with the use of resources other than those held by the candidate's electoral fund) might have impacted the electorate's preferences, we particularly need to emphasize that for any breaches of the established election campaign funding rules to be recorded, one should have access to the official financial reports submitted by the running candidates, electoral associations or electoral blocs. Availability of the materials released through the print medium obviously is not enough for one to uncover all financial illegalities related to the manufacture and circulation of election propaganda materials. The matter is that settlements for those materials could be cleared after they have seen the light, and one would hardly be in a position to identify any violations5 of the election laws until the officially certified financial accounts have been duly submitted by the candidates, electoral associations or electoral blocs.
The practical question of what particular functions can be classified as part of the candidate's campaigning effort or propaganda drive was never an easy one. As a matter of fact, the benchmarks for compliance verification of the existing campaign funding rules are largely conditional on how this question is answered. A good example to this end would be provided by the case tried on the appeals against the actions of N.V. Sevriugin, the contender for the office of governor of the Tula oblast, as well as on the demands to rescind the decision of the Tula oblast election commission on registering N.V. Sevriugin as candidate running for the aforementioned elective office. Admittedly, the election commission's decision on N.V. Sevriugin had been considered by the Tula oblast court on civil cases.
The Tula oblast election commission, that brought a civil suit to have N.V. Sevriugin deregistered as candidate for the office of governor, inter alia, pointed out that, while acting in contravention of the provisions under Article 39 of the oblast law «On electing the governor of the Tula oblast», N.V. Sevriugin had used for campaigning purposes the resources other than those held by his electoral fund. In particular, those resources were made available by: the Tula oblast administration which financed the publication of the book «For the sake of the people» that was written to provide a push for the given candidate; the regional branch of the public and political movement «Our Home is Russia» which undertook to finance the rentals for premises, office equipment and furniture (with the regional branch being invoiced to the amount of RR 9,600,000) to provide for activities of the dedicated support team tasked to campaign for N.V. Sevriugin in his race for the office of governor of the Tula oblast; the Tula regional branch of the «Our Home is Russia» movement which spent a total of RR 13,500,000 to pay for the manufacture of the 8th of March Women's Day greetings cards and released another RR 222,324,217 to pay for the fabrication of election propaganda materials in support of the candidate N.V. Sevriugin. According to the information released by N.V. Sevriugin's election campaign headquarters, his electoral fund amounted to RR 90,010,000, with the balance on his special bank account making RR 4,260,000.
The court rejected the appeals to have N.V. Sevriugin deregistered and pass his campaigning activities as illegal. The reasons for the court ruling were as follows.
N.V. Sevriugin's book «For the sake of the people», financed by the Tula oblast administration, could hardly be explicitly viewed as an election campaign propaganda piece released with the use of the resources other than those held by the candidate's electoral fund. Notably, the book could not be regarded as designed and written purely for electoral propaganda purposes. In the first place, it carries no explicit calls to vote for N.V. Sevriugin in the upcoming gubernatorial elections. The book was primarily written to address the topical issues of today. And it is certainly up to the author to decide whether to distribute his book to the Tula oblast residents free of charge. The court also noted that the question of N.V. Sevriugin not funding the release of his book could hardly be discussed by the court, for the legal relationships between the author, publisher and sponsor are governed by the provisions of the civil code and have little to do with the specific issues of election campaigning.
Pursuant to Article 33 of the Tula oblast law «On electing the governor - head of the executive body of state authority of the Tula oblast», the voters and public associations have the right to campaign either «for» or «against» the registered candidates through the agency of media vehicles as well as by way of holding campaign rallies or releasing and distributing propaganda materials. The release by the regional branch of the public and political movement «Our Home is Russia» of print propaganda materials in support of N.V. Sevriugin could not be viewed as a breach of the ban on the candidate using for campaigning purposes the resources other than those held by the electoral fund, particularly given that the activities of the said public and political movement clearly did not run counter to the provisions of Article 33 of the aforementioned law. According to the witness reports, the conference of the regional branch of «Our Home is Russia» freely chose to offer assistance to N.V. Sevriugin in the course of election campaigning and release sets of print propaganda materials that actually carried no direct calls to vote «for» N.V. Sevriugin in the gubernatorial elections. The posters and leaflets merely were designed to explain the candidate's campaign platform.
What is more, the witnesses revealed that immediately after N.V. Sevriugin was registered as candidate for the office of governor of the Tula oblast a move was undertaken to lease indoor space in the building of the Tula oblast reference library, the fact being corroborated by the relevant agreement. Under the sealed arrangement, the invoice for the lease was dispatched to the regional branch of «Our Home is Russia». Admittedly, the settlement was not achieved as promised. The elections were not completed, and N.V. Sevriugin is going to foot the bill unless other circumstances rule otherwise.
The court eventually came to the conclusion that the candidate could not be accused of using for campaigning purposes the resources other than those held by his electoral fund, particularly given that the court had not received any evidence to the effect that the regional branch of «Our Home is Russia» had actually paid the bill for leasing the Tula oblast library's premises.
Now, when it comes to the question of the regional branch of «Our Home is Russia» funding the release and distribution of print propaganda materials in support of the given candidate, it is clear that the inherent problem should be blamed on the gap in the legislation needed to govern financial commitments of public associations (and private individuals) seeking to support the campaigning functions of their preferred candidates. Under the provisions of Article 37 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum», public associations, political parties and movements (just like private citizens) have the right to take advantage of the authorized forms and techniques of election campaigning for or against any registered candidate (or list of candidates). Meantime, the existing legislation continues to hold no constraints on funding the election propaganda measures similar to those directly related to financing the election campaign activities conducted in support of the running candidate. Notably, legal provisions are currently provided to run two separate propaganda campaigns: the campaign pushed by the running candidate, electoral association or electoral bloc on the one hand and the campaign maintained by the general public, public associations and political parties or movements on the other. Under this scheme, it is only the payment by the given political party, public association or private citizen of the expenses relating to the election campaign functions immediately run by the candidate or his/her authorized agents that could be explicitly passed as a breach of the election campaign funding rules by the running candidate.
Meantime, it has to be underscored that the fact of a public association, political party or private citizen paying the campaign expenses of the running candidate, electoral association or electoral bloc, that happen to be unrelated to the election propaganda tasks (like collecting voter petitions in support of the running candidate or slate of candidates; providing for the campaign administrative support services, rentals of premises and office equipment, travel and per diem expenses, communications services, etc.) would obviously come to be in stark violation of the legal rules governing the election campaign funding practices.
Understandably, the stance on meeting the library premises rentals taken by N.V. Sevriugin's authorized agents and then held up by the court is actually explained by the unavoidable problem of implicating the running candidate in a financial wrongdoing before the official report of the candidate's electoral fund expenditures has been duly submitted. The difficulty of finding the given candidate guilty of misappropriating the dedicated funds would be immensely compounded should certain services or tangibles be made available to the candidate on credit (i.e. with payments being deferred).
As is well known, there have been some problems with application of the provisions under Article 27, Part 7 of the federal law «On basic guarantees for the voting rights of citizens of the Russian Federation». Pursuant to those rules, in the course of election campaign the election commissions are required to make scheduled public releases of the reports on the levels of grown electoral funds and their sources on the basis of relevant notifications from the running candidates or electoral associations. Providing a good example in that regard would be the case tried by a Yaroslavl oblast court on civil cases. Several regional branches of the national public associations and a number of private citizens chose to appeal against the inaction on the part of the oblast election commission in the elections of the governor of Yaroslavl oblast. The oblast election commission allegedly committed a legal infraction by failing to make public the information on the candidates building up and expending their electoral funds. The oblast court rejected the appellants' arguments and pointed out that under the relevant law of Yaroslavl oblast the oblast election commission was required to release the said information on the basis of relevant reports from the running candidates. As it was established by the court, no such reports had been forwarded by the candidates. All information to that end was carried by the candidates' financial accounts that were duly released by the oblast election commission.
One finds it difficult to concur on the position taken up by the court. The notion of «periodicity» obviously implies that the information on the running candidates growing and expending their electoral funds would be released not just in the form of concluding financial accounts submitted by the candidates following the elections. The relevant scheduled or regular releases should necessarily come as part of the overall effort undertaken to keep the electorate, candidates, electoral associations and blocs advised of the given election campaign's financial dimension. Given that it is the election commissions that are generally supposed to publicly release financial updates on the election campaign, the oblast election commission in our case should have made some steps to have the candidates submit their financial status reports on a regular or specially scheduled basis.
The federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum» (Clauses 13 and 14, article 47) stipulates a different procedure for releasing the information on the candidates growing and expending their electoral funds. The obligation to keep the relevant election commission periodically updated on the financial transactions and settlements carried out with the use of special bank accounts held by the registered candidates, electoral associations or electoral blocs rests with the relevant banks rather than with the candidates (as had been established in the past). The obligation to release the information in question has been shifted from election commissions over to the media vehicles named under Clause 1, Article 39 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum». Election commission are merely required to forward to the said media the information holding the latest updates on the candidates growing and expending their electoral funds. Given the experience garnered in this regard by the Russian election commissions, we maintain that the laws, governing the elections for a specific body of state authority or local government, should be updated to include a provision on periodicity or regularity of dispatches made by election commissions to inform the public of the registered candidates, electoral associations and electoral blocs growing and expending their electoral funds.
Falling under a special category are the court cases having to do with administrative sanctions against the candidates that have failed to submit their financial accounts within the fixed timelines. Administrative sanctions for failing to account for the financial dimension of their election campaign drives have in the past been imposed both on the winning and losing candidates. Admittedly, totals of such cases vary from region to region across the Russian Federation, which evidently could speak both for the commonality of this sort of infractions of the existing laws and for the attitudes held by the election commissions and law-enforcement bodies vis-a-vis the candidates submitting their financial accounts.
One of such cases was tried by the Oktiabrsky district (rayon) court in the city of Arkhangelsk. The suit on administrative liability of Sutiagin N.P. was initiated by the Arkhangelsk oblast public prosecutor. The court determined that Sutiagin N.P., while being registered as candidate for a deputy office of the Arkhangelsk oblast assembly (with the elections taking place March 22, 1998), had spent a total of RR 4,400 out of his personal funds in order to buy airtime from the AGTK «Pomorye» television network and use it for campaign propaganda purposes. Sutiagin N.P. failed either to report the fact to the election commission or submit a statutory account of how he managed his electoral fund.
Pursuant to Article 43 of the oblast law «On electing deputies for the oblast assembly», Sutiagin N.P. had the right to establish his own electoral fund for campaigning purposes, with his personal funds being just some of the contributions. But in accordance with Article 44 of the aforementioned law, he was required to submit his financial account to the relevant election commission within 30 days of the election day. As a result, it was determined that Sutiagin N.P. breached the provision under Clause 11, Article 40 of the Code of Administrative Offenses of the Russian Federation: while posing as a registered candidate for a government office, he failed either to inform the election commission of the contributions made to his electoral fund or submit a concluding account of his election campaign expenses. The court ruled to have Sutiagin N.P. fined in the amount of ten minimal monthly wages.
While commenting on this particular court ruling, it should be emphasized that in keeping with the provisions under Clause 1, Article 47 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum», the registered candidates shall create their own electoral funds for the purpose of financing their election campaign activities. Hence, the relevant provision carried by the Arkhangelsk oblast law «On electing deputies for the oblast assembly», which reads «the registered candidates have the right to create their own electoral funds», can only be applicable in conjunction with the status of electoral funds as it was updated by the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum».
Notably, it has often been that the registered candidates have refused either to use any financial resources for campaigning purposes or create their own electoral funds. To provide an example to this end, in the election campaign for the office of mayor of Vladivostok (the elections were slated for September 27, 1998) the registered candidate V.I. Cherepkov publicly stated that he would not spend a ruble to provide for his campaign propaganda activities. The statement was duly received by the local election commission and the media. Meantime, as it was pointed out in the decision of the Leninsky district (rayon) court of the city of Vladivostok, during the soccer matches played at the «Dinamo» stadium Cherepkov's autographed pictures with focused campaign messages had been massively distributed. It was revealed that those politically-charged photographs had been manufactured through Cherepkov abusing his incumbent office powers. The candidate received a warning against continuation of such practices from the Vladivostok territorial election commission. Admittedly, the court revealed other infractions by the candidate after the initial warning had been issued. According to the observation made by the Leninsky rayon court of the city of Vladivostok, public transport vehicles featuring the colorful billboard-type catchwords «Mayor to dacha-goers», «Mayor to the disabled», «Mayor to the Russky Island residents», etc. continued to run along the city's streets; the flower bed «Mayor to the city» continued to be there as some major attraction. The court determined that those heavily-charged promotional slogans had been put in place and paraded at the expense of public funds. The fact that those contraptions had been fabricated and distributed before V.I. Cherepkov was registered as candidate was of no legal relevance, according to the court, because by then V.I. Cherepkov had already secured his nomination for the race. Following his registration, neither V.I. Cherepkov nor the territorial election commission made any moves to set things right. The court found the uncovered violations to be sufficient grounds for rescinding the decision of the Vladivostok territorial election commission on registering Cherepkov V.I. as candidate in the elections for the office of mayor of the city of Vladivostok.
Having considered Cherepkov V.I.'s appeal against the December 25, 1998 ruling of the Primorsky kray court, the Supreme Court of the Russian Federation made the following assessment of the case and its circumstances: « Inasmuch as under Clause 12, Article 47 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum» the registered candidates are barred from using for campaigning purposes the resources other than those held by their electoral funds, the manufacture of campaign propaganda postcards through the use of undeclared resources can only be judged as violation of the standing election laws». In the end, the Primorsky kray court's ruling was left unchanged.
A. Postnikov
Translation Provided by IFES Moscow
1 Notably, while considering breaches of that or other provision of the electoral legislation committed by the running candidates in the course of campaigning (including the use of the office-provided advantages) and assessing the degree of their impacts on election results, the courts would oftentimes compare the votes received by the contenders. Should it so happen that the winner's lead (as brought against the second best) is substantial, the circumstance would normally be read as additional confirmation of the fact that the charges could hardly meaningfully sway the election results.
2 Notably, this policy line also is evident in other court rulings. To provide an example, the fact of the city newspaper «Primorye» carrying the dedicated «Mayor of Vladivostok» column filled with the mayor's edicts drafted to provide for a range of benefits and payments for specified categories of the city residents at the expense of the city budget (with the incumbent mayor V.I. Cherepkov running for a new term of office at the time) was passed by the Supreme Court of the Russian Federation (even without making an effort to identify the author of that material) as running directly in contravention of the provisions under Articles 36 and 45 of the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum».
3 At present, implementation of the court order is stayed on account of the Supreme Court of the Russian Federation investigating the Makarevich case as part of the general oversight effort.
4 At present, implementation of this court order from the Supreme Court of the Republic of Karelia is stayed on account of the Supreme Court of the Russian Federation reviewing the case as part of the general oversight effort.
5 The ruling of the Tula oblast court (commented on further below) provides a good example to support the relevance of this observation.
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