III. Comments on the Text on the Draft Electoral Law
K. Complaints and appeals
Filings with the “wrong body” are due to the filing options presented to a complainant. First, determining the substantive nature of the complaint is necessary as the nature of the complaint determines where the complaint should be filed. However, as many electoral complaints may have overlapping issues and may involve the conduct of an election commission as well as that of a candidate or political party, alternative forums for filing are presented to the complainant. Secondly, some complaints, such as one involving the inaction of a DEC, can be filed with either a court or the CEC. The OSCE/ODIHR and the Venice Commission have previously expressed concerns that a contributing element of the complexity in the current complaint system is the concurrent jurisdiction and alternative filing possibilities created in Article 108. It has been a long-standing recommendation of the OSCE/ODIHR and the Venice Commission to clarify the concurrent jurisdiction of election commissions and courts over electoral disputes. The draft electoral law retains this concurrent jurisdiction in Article 108. An amendment to Article 108.10 does require a court to inform the CEC of “initiation of the proceedings or reject (sic) to initiate the proceedings in the case”. This amendment appears to only require the court to inform the CEC as to whether the court will exercise jurisdiction over the complaint. The amendment does not eliminate the existing concurrent jurisdiction for electoral complaints and jurisdiction stays with the election commission until it affirmatively relinquishes jurisdiction by “returning” the complaint to the complainant under Article 108.11. Concurrent jurisdiction, in theory, is eliminated once the court informs the election commission and the election commission acts upon the information. Practice in the 2012 parliamentary elections, though, shows this process was flawed. The recommendations for elimination of concurrent CEC/court jurisdiction over DEC related complaints and simplification of the process for resolving electoral disputes remain.[1]
[1] See the Code of Good Practice in Electoral Matters, point II.3.3.C.c.
