Home > 2.4 Complaints and appeals > Report on Election Dispute Resolution
 
 
 
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Paragraph 32
 

According to the Code of good practice in electoral matters, in second instance, appeal should be lodged before a court and if not, a final appeal to a court must be possible. Regarding the competent bodies, the possibility of a dual system of complaints, which can be acceptable in first instance, based on the type of step challenged, cannot be envisaged anymore in second instance – i.e. on appeal. Indeed, international standards require a court to deal with an electoral complaint on appeal and as final instance – second or third instance, according to the judicial system of the country. If the body designated by the law for the settlement of electoral disputes in first instance is an election commission, i.e. a higher or authorised election commission, the electoral legislation must therefore provide the right to appeal to a court after exhaustion of the administrative process. It is legitimate to consider this requirement as stemming from the main human rights instruments guaranteeing the right to judicial remedy for the protection of fundamental rights, among them the suffrage rights. Although electoral disputes do not fall within the scope of Article 6 (“Right to a fair trial”) of the European Convention on Human Rights since they do not concern the determination of “civil rights and obligations” or a “criminal charge”, the European Court of Human Rights has underlined the importance of judicial review of the application of electoral rules, including in the context of election-related disputes.The absence of such a judicial review, with adequate guarantees of impartiality and procedural safeguards, was the reason for which the Court found a violation of Article 13 (“Right to an effective remedy”) of the Convention in conjunction with Article 3 of Protocol No. 1 in the above-cited cases. It is noteworthy that the European Court of Human Rights examines complaints regarding consideration of electoral disputes either under Article 3 of Protocol No. 1 alone where they were the subject of judicial review at the domestic level, or under Article 13 of the Convention taken in conjunction with the above-mentioned provision where no such judicial review took place.