Supreme Court Case Regarding Allegations Of Manipulation Of The Vote Count In Presidential Elections Held On 16 June In The Tartarstan Republic
On 5, 9 and 10 July, IFES personnel attended the hearings before the Supreme Court of the Russian Federation regarding allegations of manipulation of the vote count by the Subject Election Commission of the Tartarstan Republic for the first round of voting in presidential elections held on 16 June. The complaint was brought by Alexander I Saliy, a deputy in the State Duma and protégé of former Presidential candidate Aman-Geldi M. Tuleev. They are widely regarded as cooperating with the campaign of presidential candidate Gennady Zyuganov and the Communist Party, and have relied upon evidence provided by Communist observers.
The case is brought in the Supreme Court against the Central Election Commission of the Russian Federation (CEC) on the basis that the CEC relied upon fraudulent voting results provided by the Tartarstan Subject Election Commission (SEC) in announcing the nation-wide election results for the first round, and such reliance constituted an «inappropriate and illegal decision of the CEC.» The complainant alleges the aggregate results provided by the Tartarstan SEC in the protocol it submitted to the CEC represented a falsification of candidate totals for the Subject.
The CEC has maintained the election law obligates them to accept the certified protocols of subject election commissions in calculating their official results and that they have no independent basis to review these results. Complainant argues that the CEC should not accept data they have substantial reasons to doubt, and also maintain their complaint will not be fairly heard at the subject level commission or courts due to the control and hostility of Tartarstan authorities who perpetrated the fraud.
The complainant offered as evidence a copy of the SEC's protocol and summary tables of territorial commission results submitted to the CEC, and copies of protocols from five territorial commissions the complainant was able to obtain (out of 60 territorial commissions within the subject, the rest of whom had refused complainant's request for copies). The Complainant also provided a chart showing that numbers in the SEC's summary tables and those of the five territorial commission's protocols did not match, and indicating how votes had apparently been shaved off certain candidates and moved over to the Yeltsin column. (Copies of complainant's evidence attached.)
Hearing Before the Supreme Court on 5 July
As result of the first hearing in this case, Judge Fedin sent a communication to the Tartarstan SEC instructing them to provide certified copies of the protocols they had received from all territorial commissions within the subject and for the SEC to send a representative to the 5 July hearing. The SEC declined to meet either request. Thus, the preliminary issues considered in the second hearing were whether the case could proceed without the participation of the Tartarstan SEC, an important interested party even though not directly a defendant in the case, and whether the court should sanction the Tartarstan SEC or its chairman for failure to respond to the court's request (essentially contempt of court).
Lawyers representing the CEC were asked their opinion of the questions of representation of the Tartarstan SEC and possible imposing of sanctions. They clearly supported the subject's interests - sanctions would not be appropriate because the SEC is very busy with the second round (though the CEC could not explain why the subject commission could not have come up with the documents), and that the case should be postponed until the Tartarstan SEC could be represented. Although the posture of the case clearly puts the CEC in an adversarial relationship to the complainant, the CEC has consistently taken a defensive, negative and overtly critical position toward the complainant and his allegations in this dispute, beyond that which would be necessary to defend the CEC's specific legal responsibility or liability, and certainly contrary to any institutional interest in getting to the truth and insuring the accuracy of election results.
After hearing from the procurator, Judge Fedin agreed that the SEC should not ignore the court in this matter, and called a 10 minute recess to consider these questions. When he returned, he brought with him two more judges to sit as a panel with him. He announced their conclusion that the territorial commission documents from Tartarstan were needed for the legal process in this case to be complete, and that the failure of the SEC to send documents and representatives showed disrespect for the court. Thus, the court would postpone the hearing until 9 July at noon.
However, this hearing did not end. Judge Fedin, decided to permit the taking of testimony from and questioning of the witness for the complainant who was present, despite the CEC's objection that it would be unfair and inappropriate until the Tartarstan SEC representative could be present to question the witness as well. The judge stated that if and when Tartarstan decided to send someone they would have a chance to «cross examine» the witness. The witness gave his name and status as a deputy to the State Duma, and was sworn to tell the truth.
He first noted the precinct and territorial commissions had been formed by bodies of local self-government without input of local political interests and public associations (and same problem in second round). The territorial commission did not permit a deliberative member for Zyuganov to participate prior to election day, and did not permit Zyuganov members or observers to even watch the commission's work until the middle of the day following the election (and again same problem in second round). Deliberative members of election commissions in Tartarstan were not allowed their rights: were not given access to examine or copy documents, nor allowed to be close enough to table where counting or tabulation took place to properly observe process. Any effort by the witness or his colleagues to question commission actions were treated as impermissible disruptions.
The witness complained to the local procurator office, to the supreme court of the Republic and to the CEC, but no responses or corrective actions were provided. The Subject commission finished its work and reached its conclusion at 6 p.m. on Thursday the 19th, and would not provide deliberative members or observers any documents, particularly copies of territorial commission protocols upon which they presumably relied nor their own summary table of that data.
Allies of the Communist Party and Zyuganov with which complainant and the witness were affiliated had observers at virtually all polling stations in the subject, however, and were attempting to piece together information. Based just on the five territorial commission protocols of which they had copies and the SEC protocol and summary table, and referring to the chart provided, the witness claimed the evidence demonstrated that territorial commission protocol numbers were altered during tabulation by the Tartarstan SEC, and that 60,000 votes had been moved over across the board and in proportionate chunks from other candidates to Yeltsin. It appears the witness believes the [subject] numbers were changed from 46% Zyuganov and 33% Yeltsin to 62% Yeltsin and 17% Zyuganov.
Generally, total number of votes cast was kept the same, although votes appear to have been added to totals in the capital of Kazan. Kazan was alleged to have been particularly egregious. The witness claimed a special order had been given [by whom?] to use non-valid ballot forms to add votes for Yeltsin. The witness claimed the second round was worse.
The witness's group made a public request to the SEC for copies of protocols of territorial commissions, but was refused, the SEC telling them to «cooperate, trust, don't worry.» They filed a formal complaint with the procurator, which was denied. They sought copies of copies of protocols, which were denied in all cases except five.
The SEC certified its protocol with the challenged results and sent it to the CEC in Moscow (apparently the last subject commission to do so). Importantly, the witness stated his group sent a telegram from their deliberative member to the CEC on the 19th - the day before the CEC certified and announced official results - expressing their dissatisfaction with the subject election commission protocol and the basis for their challenge (the witness presented a copy of the telegram to the court). According to the witness, the CEC did not respond.
The witness also stated they sought a resolution of their complaints from the SEC before the second round to prevent a recurrence, with a list of six specific questions, but were rebuffed. They again tried to get summary tables from the SEC, but were told to go to court if they wanted them.
The CEC's lawyers declined to ask any questions of the witness.
After another recess, the court announced it would impose a sanction of 20 minimum wages upon the Tartarstan SEC chairman (the law permits a fine of up to 50 minimum wages), presumably to get some attention before the next hearing on the 9th.
Hearing Before the Court on 9 July
Judge Fedin and his two colleagues presided at the next hearing. A new procurator appeared (the prior one is on vacation), as well as the complainant and his lawyer, the same CEC lawyers and the same camera crew and reporter for ORT television. Importantly, two female representatives of the Subject Election Commission of the Tartarstan Republic attended.
The CEC lawyers began with a lengthy criticism of the complaint and its complainant: the CEC had checked out the allegations and found no problems, the complaint was subjective and based only on appearances, the complainant's objections were out of line, inappropriate and unacceptable, the main point was that the complaint was not within the law. CEC lawyers accused the judge of violating Art. 46 of code of civil procedure in trying to not be too formal or nitpicky (perhaps criticism of Judge Fedin's decision to permit questioning of the witness in previous hearing). Complaint was inadequate on moral as well as legal grounds, and based purely on partisanship.
CEC attorneys then presented what was basically a «motion to dismiss» alleging the proceedings were not legally valid. Judge Fedin irritated, noted that the case was already in progress and said the CEC's words would be put in the public record. The judge then reviewed the main allegations and developments in the case.
Complainant's lawyer also described the allegations and nature of the evidence, and noted the SEC should possess certified copies of territorial commission protocols. He said analysis indicated Yeltsin had gained 45,540 votes and Zyuganov lost 9304 votes, and that violations of electoral rights are continuing, as territorial commissions are pressuring polling sites to change their protocols to reflect the new numbers. He also criticized the CEC for trying to quash the case rather than pursue the allegations, saying they should have sent someone to Tartarstan to investigate the charges.
Then began a series of questions from the CEC to complainant that seemed intended to challenge the veracity of the story behind the allegations and the integrity of the complainant. Where did you get these protocols from? Complainant's lawyer said certified copies of protocols from territorial commissions were obtained by way of Duma deputies. When did you decide your rights were violated? When they received the copy of the Tartarstan SEC protocol from the CEC around 24 June, and saw differences between its summary sheet and previously obtained territorial protocols. Why did witness choose you to give documents? Represented initiative group for Zyuganov. You have interests in allegations of voting rights 'violations elsewhere, why choose Tartarstan? Waiting for documents elsewhere. you say count not objective, what do you mean by objective? CEC was informed by member with deliberative vote of vote fraud but did not do anything. CEC lawyer Voshinin was badgering the complainant's lawyer about motives and semantics. Complainant argued the CEC has broad authority and powers, but had chosen not to get involved in case or take into account the discrepancies when deciding upon results.
The most significant development in this hearing was the introduction into evidence by the Tartarstan SEC representatives of protocols and summary tables from the five territorial commissions the complainant had utilized in bringing the allegations of falsification of results. The SEC's copies were official first copy protocols, which the SEC would presumably have received, rather than photocopies of the «third copy» that observers would have obtained; the CEC and SEC made much of this difference, clearly indicating they considered the observer copies (upon which the whole transparency of the electoral system depends) as inferior and inadequate as evidence. The five territorial commission protocols presented by the SEC were consistent with the returns in the SEC protocol and summary table of territorial commission results. The hearing concluded with a discussion of arrangements regarding photocopying and distribution of copies of evidentiary documents.
Hearing Before the Court on 10 July
The court met again the next day. CEC attorneys began with another attack on the legitimacy of the complaint and the proceedings, and inserted an allegation that Judge Fedin and the complainant had engaged in an inappropriate «ex parte» meeting that morning prior to the hearing. The CEC lawyer then tried to move on to another topic, and Judge Fedin exploded with indignation that his integrity would be challenged. Ultimately, the judge demanded the CEC give specific details for its allegation, and brought in another judge from down the hall to demonstrate that the heavy-set dark-haired man in a black shirt with whom Fedin had tea that morning was this other judge, not the complainant of similar appearance.
The complainant came back to the court this day with copies of protocols from all the polling sites in the five territories in dispute to demonstrate that their versions were accurate and the territorial commission protocols presented by the SEC the day before were falsified. Most of these copies were signed by all members of the polling site commissions or their officers, and stamped; a few were observer-made copies signed by two or more observers (often Yavlinsky observers cooperated) where the commissions had refused to provide copies. Complainant alleged the SEC had requested blank protocols signed by the territorial commissions to permit their introducing manipulated numbers later.
Each batch of polling site commission protocols for each territory were identified and laboriously examined in turn. The Tartarstan SEC representatives and CEC lawyers looked at every one criticized the location of stamps or absence of full signatures, etc. They offered no substantive response, however, and claimed merely that they were not responsible for those protocols and had calculated their SEC results from what was given them. The «defense» could not explain the seeming discrepancies between their territorial results and the component polling sites for each territory.
At the conclusion of presentation of this evidence, the court indicated the case deserved further action and described alternative means for proceeding: referral to the Supreme Court of Tartarstan or to the Tartarstan procurator for further investigation and taking of testimony; referral to the General Procurator in Moscow for investigation and a determination of potential criminal violations, based upon evident inconsistencies in certified protocols; and this Supreme Court panel itself moving venue to Kazan for further proceedings closer to the evidence and witnesses. Complainant stated his strong objection to the first alternative, reiterating his view the complaint would not get a fair and full airing by Tartarstan authorities.
The court took a long recess, and returned with a decision to refer the case to the office of the General Procurator in Moscow for further investigation (apparently contemplating a trip by procurator staff to Tartarstan) and a determination of whether criminal violations occurred in the tabulation process in Tartarstan. Precise personal responsibility and legal liability for any problems may be hard to pin down.
Judge Fedin indicated the case would return to the court panel for further action if the procurator found violations of the election law had taken place affecting the accuracy of the vote count. It is unclear precisely what action the Supreme Court would take or direction it might give were it to resume consideration of the complaint after manipulation of the vote count had been proved. Obviously, even the broadscale fraud indicated by the evidence in this case would not change the outcome of the first or second round of presidential elections. Rather than force the legal point as to the absence of CEC responsibility or discretion in this matter under the law, the court may simply make a finding as to the correct election results and permit the Tartarstan SEC to amend its protocol or the CEC to adjust the results without ordering them to.
Importantly, however, the Supreme Court has in this matter treated the allegations of the complaint seriously and has provided a forum for developing an extensive preliminary factual record while memories and interest are still strong. It is regrettable the CEC felt compelled to take such a wholly defensive and hostile approach to these serious charges; the CEC should have felt an obligation to seek the truth and insure the integrity of the vote count and election process for which they are ultimately responsible.
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