Clarification of Certain Issues Related to the Application of the Provisions of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» Which Prohibit Taking Advantage of Official Position or Status during the Conduct of the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation of the Third Convocation
APPROVED
Resolution of the Central Election
Commission of the Russian Federation
No.27/360-3 of October 21, 1999
In connection with numerous requests the Central Election Commission of the Russian Federation considers it necessary to clarify certain issues related to the application of provisions of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» (hereinafter «the Federal Law») which prohibit candidates, registered candidates to deputies of the State Duma of the Federal Assembly of the Russian Federation, and other persons from taking advantage of their official position or status during the election campaign.
1. In accordance with Clause 2 of Article 41 of the Federal Law, taking advantage of an official position or status is understood as:
a) involvement of persons who are subordinate to or dependent on a candidate in the line of duty, other government and municipal employees in the activity conducive to nomination and/or election during the working hours;
b) use of premises occupied by state bodies or bodies of local self-government for carrying on the activity conducive to nomination and/or election if other candidates or registered candidates cannot use the same premises on the same terms and conditions;
c) use of telephone, fax and other types of communication, information services, office equipment of state organizations or bodies of local self-government for conducting signature collection and election campaigning;
d) use of state- or municipality-owned transport facilities free of charge or at reduced rates for carrying on the activity conducive to nomination and/or election. This provision does not apply to persons using the said transport facilities in accordance with the federal law on state-provided security;
e) collection of signatures or election campaigning by government or municipal employees in the course of business trips paid for from the state or municipal funds;
f) privileged access (compared to other candidates, registered candidates) to the mass media for collecting signatures or election campaigning.
2. In accordance with Clause 6 of Article 35, Clause 1 of Article 41, Clauses 2 and 3 of Article 48, and Article 91 of the Federal Law, candidates, registered candidates and authorized representatives of an electoral association and electoral bloc holding government or municipal offices must not take advantage of their official position.
Registered candidates who work in the mass media under a contract or civil-law agreement must not take advantage of their official position either.
Violation of these restrictions can serve as a reason for a refusal to register a candidate, a federal list of candidates or for annulment of registration of a registered candidate or a federal list of candidates.
3. In accordance with Article 2 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» a candidate is a person nominated for an office of deputy of the Sate Duma of the Federal Assembly of the Russian Federation, which is filled through direct elections and a registered candidate is a person registered by an election commission as a candidate for the office of deputy of the State Duma of the Federal Assembly of the Russian Federation.
4. In accordance with Article 1 of the Federal Law «On the Basic Principles of the Civil Service in the Russian Federation» government offices are subdivided into:
1) offices established by the Constitution of the Russian Federation, federal laws (government offices of the Russian Federation), constitutions, charters of the Subjects of the Russian Federation (government offices of the Subjects of the Russian Federation) for direct execution of powers of government bodies (President of the Russian Federation, Chairman of the Government of the Russian Federation, chairmen of the chambers of the Federal Assembly of the Russian Federation, heads of legislative and executive bodies of the Subjects of the Russian Federation, deputies, ministers, judges, etc.) - government offices of Category «A»;
2) offices established by legislation of the Russian Federation for direct execution of powers by the persons holding offices of Category «A» - government offices of Category «B»;
3) offices established by government bodies for the execution of their powers - government offices of Category «C».
It follows from Article 2 of the Federal Law «On the Basic Principles of the Civil Service in the Russian Federation» that municipal offices are subdivided into:
- elective municipal offices filled as a result of municipal elections (deputies, members of the elective body of local self-government, elective officials of local self-government) and offices filled on the basis of decisions made by the representative or some other elective body of local self-government in relation to persons elected members of the said bodies as a result of municipal elections;
- other municipal offices filled under labor agreements.
Concrete offices are classified as government or municipal offices in accordance with federal laws, lists and registers of government and municipal offices approved by decrees of the President of the Russian Federation, laws of the Subjects of the Russian Federation, or, before their regulation by the laws of the Subjects of the Russian Federation, by normative legal acts of the bodies of local self-government.
5. Based on the provisions of Clauses 2 and 3 of Article 48 of the Federal Law, candidates who were registered in a single-mandate district and/or on a federal list of candidates and hold government offices of Category «A» or elective municipal offices have the right to carry on their official duties.
In addition to this, in accordance with Clause 7 of Article 48 of the Federal Law, compliance by registered candidates who are deputies or elected government officials with the restrictions on taking advantage of the official position must not prevent them from executing their powers and performing their obligations to voters.
Such registered candidates may be released from their official duties in a procedure set forth in Clauses 1 and 2 of Article 49 of the Federal Law. However, a registered candidate who is at the same time a deputy, an elected government official is not obliged to take a leave of absence.
6. In accordance with Clause 3 of Article 48 and Clause 1 of Article 49 of the Federal Law candidates registered in a single-mandate electoral district and/or are on a federal list of candidates, who are on civil or municipal service or work in the mass media under a contract or labor agreement must be released from the performance of their official duties during their participation in an election. The release of the above mentioned persons from the performance of their official duties during their participation in the election is obligatory and must be documented by an order or a directive of the head of the institution or organization. The corresponding initiative must come from a registered candidate who is obliged to submit an appropriate application to the head of the institution or organization. The registered candidate must be released from the performance of the official duties from the day of his/her registration by the appropriate election commission to the date of official publication of the election results or, if the registered candidate withdraws his/her candidacy or is recalled by an electoral association, electoral bloc in accordance with Article 51 of the Federal Law or if the candidate's registration is annulled, to the day of the registered candidate's withdrawal.
Registered candidates must submit a certified copy of the relevant order (directive) to the appropriate election commission within three days after registration.
In accordance with Sub-clause «g» of Clause 3 of Article 91 of the Federal Law, if a registered candidate who is a civil or municipal servant continues to perform his/her official duties during his/her participation in the elections, this may serve as a reason for annulment of registration of a registered candidate.
Taking into account the fact that the Federal Law provides that the release from the official duties is temporary, in accordance with Articles 66-68 of the Labor Code of the Russian Federation a registered candidate is released from his/her official duties by granting him/her a leave or absence (paid or unpaid). The form in which a registered candidate is to be released from official duties must be chosen by the registered candidate.
In accordance with Clause 1 of Article 49 of the Federal Law, if a registered candidate is released from the performance of his/her official duties on an unpaid basis, the election commission which registered him/her shall pay the registered candidate monetary compensation in the amount of his/her average monthly wage (salary, pay) but not in excess of 834.9 rubles per month - a sum established for the elections to the State Duma of the Federal Assembly of the Russian Federation of the third convocation. The monetary compensation must be paid to the registered candidate for the period during which he/she is released from the main work, on the basis of the order of the administration of the candidate's main place of work granting him/her an unpaid leave of absence.
In accordance with Clause 6 of Article 49 of the Federal Law, a registered candidate who was released from the performance of his/her official duties from the day of his/her registration to the date of official publication of the election results must not be dismissed from his/her job on the initiative of the administration (employer), expelled from an educational establishment, transferred to another job or position or sent on business trips, called up for military or alternative service or for military training.
7. In accordance with Clause 5 of Article 48, a registered candidate holding government offices of Category «A» or an elective municipal office may carry on election campaigning only when he/she is off duty.
In addition to this, in accordance with Sub-clause «b» of Clause 3 of Article 52 of the Federal Law, it is prohibited to carry out election campaigning and to distribute any propaganda materials for persons who hold government and municipal offices, government and municipal employees, servicemen when they are discharging their official duties or by taking advantage of their official position and status.
In accordance with Articles 57-76 of the Labor Code of the Russian Federation, off duty periods include breaks for rest or meals, weekends, holidays and vacations
The issues concerning the compatibility of the status of a deputy, elected official with a status of a registered candidate in election campaigning are clarified in Para. 5 of Clarifications of Certain Issues Related to Election Campaigning in the Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation of the Third Convocation approved by CEC Resolution No.8/52-3 of August 13, 1999.
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