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IV. Special Electoral Issues
A. Voting Abroad
According to the law, Russian citizens who are out of the country on election day have the opportunity to participate in the upcoming 19 December parliamentary election. (Articles 16.4 and 16.7 of the Duma Elections Law; Article 53.1 of the Basic Guarantees Law). Voting overseas was first practiced in 1996 for the Presidential election. The Duma Elections Law (Article 16.7) provides that Russian citizens who «are eligible to vote and staying in foreign states at private institutions, on official business and as tourists shall be put on the voter list when they come to premises of a precinct or district election commission, upon production of a passport or an equivalent identity paper AND an absentee certificate for voting in the election of deputies to the State Duma.» [emphasis added]
The formation of electoral precincts and voter lists abroad are described in Articles 14.6 and A15.6 of the Duma Elections Law. Although the language is somewhat vague, the CEC appears to have the broad power to provide for voting for citizens abroad under authority granted in Article 24.1(b) of the Duma Elections Law. Under the law, the CEC can «exercise control over the observance of electoral rights of citizens of the Russian Federation during the preparation and conduct of the election...»
In the first round of the 1996 Presidential election on 16 June, 518,464 Russian citizens voted abroad at embassies and other sub-locations. This represented .48 % of the 107,976,559 total ballots cast in that election. In the strongly contested run-off ballot on 3 July, even more citizens abroad - 540,520 cast ballots in that election. This represented one-half of one percent (.5%) of the 108,048,530 total votes cast in the runoff.
What is problematic is that the law states that the voter must produce identification and an absentee certificate. Absentee certificates are governed by Article 72 of the Duma Elections Law, which indicates that they should be subject to «strict accountability.» This Article states that voters unable to come to their polling station are «entitled» to obtain an absentee certificate from the TEC 45 - 25 days before the election and from the PEC (of their residence) within 24 days of the election. If Russian citizens are already overseas prior to the 45th day before the election, no practical mechanism is established for them to obtain such certificate. The Law used for the 1996 Presidential election was equally as vague and utilized similar language. In 1996, Russian embassies and other subordinate sites were utilized as polling locations. According to the 1996 IFES report on the Presidential Election, procedures used at such sites were generally good but not necessarily consistent. In addition, the report indicated that many sites ran out of ballots since they had no idea how many people were coming to vote.
Recommendations:
 In the absence of any clarification in amendments to the law passed before the election, the CEC should establish clear procedures for voting abroad. In 1996, the CEC did provide out of country polling sites with written material regarding the voting process. In its instructions to remote polling sites for citizens living or traveling abroad, the CEC should include the following:
- Have citizens abroad indicate their interest in voting in the election.
The embassies should request that citizens of the Russian Federation living abroad register their interest in voting in the parliamentary election with the Russian Embassy in the country in which they have their temporary residence in advance. This notification could be in writing, fax, or e-mail. It should include the name, family name, date of birth, place of birth, citizen's passport number, Russian address, temporary address, telephone number, and place to which the citizen will want to cast their ballot. This would allow the embassy to make a list in advance of such persons and help determine how many ballots they may need.
This information should be disseminated to Russian citizens via the mass media and organization that may have contact with Russian citizens living abroad. It is suggested that this press release/press conference take place no later than 45 days prior to the election (4 November).
Persons on an embassy list should receive written instructions regarding how they may vote in the parliamentary election, including information about casting their ballot at a location (other than the embassy) which is more convenient for them.
- Waive the requirement for the absentee certificate.
Under powers granted in Article 24.1(b) of the Duma Elections Law the CEC should issue a resolution which indicates that Russians citizens abroad do not have to show an absentee certificate if they went abroad prior to the 45th day before the election (4 November 1999).
B. Absentee Certificate
If a voter on election day is unable to go to the PEC where his name is included on the voters list, he is eligible to apply for an absentee certificate according to Article 72 of the Duma Elections Law. This certificate enables the voter to cast his ballot at the polling station where he will be on election day. The voter must apply in writing for an absentee certificate 45 - 25 days prior to the election at the TEC. If the election is under 25 days, the voter applies for an absentee certificate at the PEC. A record is kept at the TEC of all absentee certificates issued. Twenty five days prior to the election, the TEC provides the PEC with the official voters list and a list of names for all issued absentee certificates for that commission. The PEC removes the name of all voters who have been issued absentee certificates. On election day, a voter upon presenting an absentee certificate, is allowed to vote. His name is added to the voter list. The State Duma Law does not require the voter to sign his name on the voters list. However the CEC has issued instructions to require a signature before any ballot is issued.
The printing and transfer of absentee certificates is handled in the same manner as ballot papers according to Article 72.1 of the State Duma Law. The chairman of the TEC is responsible for the transfer and safekeeping of the absentee certificates until the certificates are transferred to the PEC. Absentee certificates will not be used in hospitals for the Duma election as in the past. The CEC is making all hospitals voting centers.
Problems that have been identified in the absentee ballot process include the following:
Absentee certificates are issued based on the information submitted by the voter. The law does not spell out the reasons for which a voter may be issued an absentee certificate.
The storage and transfer of absentee certificates does not deal with security. Also there is no mention in the State Duma Law that requires a signature when certificates are transferred from the TEC to the PEC.
Recommendations:
All absentee certificates should be numbered. The TEC should record the number of the absentee certificate in the record when issued. A record should be established at the PEC to record all issued absentee certificates along with the number of the certificate. In case of fraud a record is established with information on the voter and a number that can be used for tracing of fraudulent certificates.
To prevent fraud, printing of absentee certificates should use the suggestions as recommended for the printing of ballot papers.
C. CEC Assistance for International Observers
Having been active contributors to electoral process in Russia for the 1995 State Duma Elections and the 1996 Presidential elections, IFES has made note that international groups responsible for monitoring these elections have worked without coordination and with little cooperation. The lack of information available to observer groups has resulted in lower quality observation efforts than could have been obtained if these efforts had a focal point for election related resources. It is IFES's opinion that an observation effort that has one hub for information and one body responsible for the distribution of official election information will have greater coherency and result in improved election monitoring efforts.
IFES recommends that the infrastructure necessary for the diffusion and centralization of information, including open and accessible office facilities, be put in place by the CEC, or, alternatively, by an authorized organization. Furthermore, given the intricacies of the Russian legislation and advancements which have been made in the past four years, appropriate briefing materials about the electoral process, the political parties, and the steps which lead to elections should be readily available to the international community.
D. State of Emergency
The legal regime of the state of emergency in the Russian Federation is regulated by the Constitution of the Russian Federation and RSFSR Law No. 1253-1 of May 17, 1991 «On the State of Emergency.» Under Articles 56 and 87 of the Constitution of the Russian Federation, the procedure for declaring a state of emergency and its regime is to be established by a federal constitutional law. At this time, there is no federal constitutional law in place providing the specific procedures and regime for the declaration of a state of emergency.
In cases where a mandated federal constitutional law has not been enacted, the Constitution stipulates that laws in existence under the Russian Soviet Federation of Socialist Republics (RSFSR) are applicable as far as they do not contradict the Constitution.5 Therefore, the regime of the state of emergency and the procedure for its declaration are regulated by the RSFSR Law of 17 May 1991.
In accordance with the Constitution, and under circumstances that need to be defined in the federal constitutional law, the President of the Russian Federation is permitted to proclaim a state of emergency in the territory of the Russian Federation. The President must immediately inform the Federation Council and the State Duma if he proclaims a state of emergency. The Federation Council has an unambiguous right of approval (Article 102, Part 1, Paragraph «c of the Constitution») of this decree.
A question then arises as to what happens if the Federation Council does not approve the presidential decree. Under Article 12 of the RSFSR Law of 17 May 1991, a decree declaring a state of emergency, which has not been approved by a resolution of the Supreme Soviet of the RSFSR, becomes null and void and the population of the corresponding territory must be informed of this fact through the mass media. However, the Constitution designates another body responsible for approving a presidential decree (now it is the Federation Council and not the Supreme Soviet) and it is not clear whether the former legal consequences of non-approval of the presidential decree remain in force.
The circumstances for a state of emergence decree are specified in the RSFSR Law of 17 May 1991. Article 3 of this Law indicates that a state of emergency may be declared only in a situation where circumstances pose a real, extraordinary and imminent threat to the safety of people or to the constitutional system of the republic and these circumstances cannot be averted without resorting to extraordinary measures. According to Article 4 of this Law, the reasons for declaration of a state of emergency may be as follows:
a) attempts to change the constitutional system by violent means, mass disorders with acts of violence, ethnic conflicts, blockade of certain localities, which jeopardize the life of people or normal functioning of state institutions;
b) natural disasters, epidemics, epizootic diseases, major accidents, which imperil the life and health of people and require urgent salvage and restoration measures to be taken.
The Constitution of the Russian Federation provides that certain restrictions may be imposed for definite periods on rights and freedoms to ensure the safety of people and protect the constitutional system. Not all rights are suspended under a state of emergency; for example the freedom of conscience, the right to life, and the right of access to the courts remain guaranteed. 6 The Electoral rights of citizens are not guaranteed in a state of emergency.7 Furthermore, the right to hold a referendum, in fact, is categorically denied. According to Basic Guarantees Law (Article 14.3), a referendum shall not be held when a state of emergency declared in the territory of the Russian Federation, or in the territory where the referendum is to be held, and also within three months after a state of emergency has been lifted.
International experience with natural and social crises in times of elections shows that basic conditions of infrastructure, social cohesion, and the ability of electoral and governmental authorities to carry out elections are essential for elections to take place in crisis situations. In terms of elections, Caribbean nations, for example, have faced extraordinary situations in times of elections due to cyclones, hurricanes, floods, or other such natural disasters. Their main remedy is to either postpone elections in part or a whole of the country, depending on the magnitude of the crisis. The coastal states in the United States, such as North Carolina or Florida, have emergency provisions in their state election law that allow their election commission to suspend or adjourn an election in whole or in part due to «acts of god» according to specific criteria. In the Philippines, in May 1998, national congressional elections were suspended in a small part of the country due to a local rebel insurgency. In the majority of cases, the usual approach is to limit the suspension of electoral rights to a geographically limited area within a country in times of crisis.
Recommendations:
To have a Federal Constitutional Law adopted which defines the proper conditions to have a declared state of emergency;
To have a «state of emergency» regime which limits the rights of citizens to participate in elections that is limited to the areas where it is impossible to establish the voters will;
To define the conditions in the election law whereby the CEC and sub-level election commissions can determine the conditions for suspending or postponing elections due to extraordinary circumstances.
5 See Part 2 of Section II of the Constitution of the Russian Federation «Concluding and Transitional Provisions.»
6 According to Part 3 of Article 56 the rights and freedoms laid down by Articles 20, 21, 23 (Part 1), 24, 28, 34 (Part 1), 40 (Part 1), 46 - 54 of the Constitution of the Russian Federation are not subject to any restrictions under any circumstances.
7 Electoral rights are guaranteed in the Constitution - See Part 2 of Article 32
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