Proceedings in cases of protection of electoral rights and the...

Proceedings in cases of protection of electoral rights and the right to participate in a referendum of citizens of the United States

The electoral rights of citizens for the first time became the subject of judicial protection in 1938 in connection with the approval of the instructions of the People's Commissariat of the USSR, which provided for the right to appeal to the judiciary with complaints about irregularities in the voter lists. Later, the Civil Code of the RSFSR of 1964 reproduced the relevant chapter - "Complaints on irregularities in the voter lists", by which it was supposed to resolve conflicts concerning the non-inclusion of the voter in the lists, distortions of the surname, name, patronymic of the voter, and others. However, for obvious reasons, this chapter has not been used for a long time, and only in the early 90's. In the last century, similar legal conflicts appeared in the courts, the number of which is constantly increasing, especially during electoral periods. To a certain extent, this was due to a change in the socio-political situation in the country, as well as the adoption of a new legislative framework. For example, Federal Law No. 56-FZ of 06.12.1994 "On basic guarantees of electoral rights of citizens of the United States" (now out of force) was allowed to appeal any violations of electoral rights, and not only related to irregularities in the lists of voters, on the basis of which Ch. 23 of the Civil Procedure Code of the RSFSR in 1964 underwent changes and acquired another name - "Proceedings on the protection of electoral rights and the right to participate in the referendum of citizens of the United States." Yet some of the provisions of this chapter were found unconstitutional. In particular, the Decision of the Constitutional Court of the United States of 25.12.2001 No. 17-P noted that the verified head in some articles does not comply with the Constitution, since it excludes the possibility of appealing in cassation proceedings court decisions on cases of violations of electoral rights of citizens not related to contestation results of elections or referendums.

During the discussion and adoption of the new CCP, the legislator tried to take into account the previously discovered defects in legal regulation in the field of both active and passive electoral relations. In addition, it should be remembered that procedural rules of a private nature are also contained in federal laws No. 138-ΦZ of 26 November 1996 "On ensuring the constitutional rights of citizens of the United States to elect and be elected to local self-government bodies", dated 12 June 2002 No. 67- FZ "On Basic Guarantees of Electoral Rights and the Right to Participate in the Referendum of Citizens of the United States", as of 18.05.2005 No. 51-FZ "On Elections of Deputies of the State Duma of the Federal Assembly of the United States", dated 10.01.2003 No. 19-FZ " On the election of President Rossi Federation and others

Specificity of the specified normative legal acts predetermines the variety of disputes arising in the exercise of electoral rights and obligations, which requires their classification. Depending on whether a citizen is elected or elected, disputes are about the protection of active and passive electoral rights. Depending on whether a citizen is elected or elected, disputes are about the protection of active and passive suffrage. Disputes can arise at various stages of the development of the electoral procedure, for example, at the time of the formation of electoral districts, compiling voter lists, nominating and registering candidates for election, conducting pre-election campaigning, etc. (L. V. Tumanova). By subjective composition, disputes can affect the subjective electoral rights of certain citizens, electoral associations, political parties, or it may be about defending an undetermined number of persons who participate in the election campaign. This is evidenced by Art. 259 of the CCP, according to which numerous subjects have the right to apply to the court with applications for the protection of electoral rights and the right to participate in a referendum.

1. With such a statement, voters, referendum participants, candidates and their proxies, electoral associations and their proxies, political parties and their regional branches, other public associations, initiative groups for holding a referendum and their authorized representatives, other groups of referendum participants and their authorized representatives, observers, prosecutors who consider that decisions or actions (inaction) of the state authority, local government, society the election commission, the referendum commission, the official, electoral rights or the right to participate in the referendum of citizens are violated.

2. The US Central Election Commission, the election commissions of the US subjects, the election commissions of municipalities, district, territorial and precinct election commissions corresponding to the referendum commission are entitled to apply to the court in connection with the violation of the legislation on elections and referenda by the state authority, local government, persons, candidate, electoral association, political party, its regional branch, other public association a referendum initiative group, a different group of referendum participants, as well as an election commission, a referendum commission, a member of an election commission, a referendum commission.

3. With a request to cancel the registration of a candidate (list of candidates), the election commission that registered the candidate (list of candidates), the candidate registered for the same electoral district, the list of candidates registered in the same electoral district, as well as in cases established federal law - the prosecutor.

4. With a request to disband the election commission, as well as a referendum commission, persons who are established by federal law are entitled to apply. In particular, according to Art. 31 of the Federal Law "On Basic Guarantees of Electoral Rights and the Right to Participate in the Referendum of Citizens of the United States"; the commission can be disbanded by the court in the following cases:

- Violations by her of the electoral rights of citizens, the right of citizens to participate in a referendum that led to the recognition of the CEC of the United States, the election commission of a US entity invalid voting results in the relevant territory or the results of elections, referendum;

- failure to comply with the decision of the court or higher commission, the decisions of the US CEC, the election commission of the United States entity, the election commission of the municipal district;

- her failure to fulfill the obligation to appoint elections, which entailed the appointment of elections by the temporary election commission.

The application for disbandment of the US CEC can be submitted by a group of at least 1/3 of the total number of members of the Federation Council or deputies of the State Duma.

With a similar requirement to disband the election commission of a US subject, a group of at least 1/3 of the total number of members of the Federation Council or deputies of the State Duma or a group of deputies numbering at least 1/3 of the total number of deputies of the legislative (representative ) of the body of state power of the subject of the United States, or a group of deputies of any of the elected chambers of the said body of at least 1/3 of the total number of deputies of this chamber, as well as the US CEC.

With a statement to the court of general jurisdiction on the disbandment of the district election commission for elections to the legislative (representative) body of state power of the US subject, a group of deputies of at least 1/3 of the total number of deputies of the legislative (representative) body of state power of this US subject or a group of deputies of any of the elected chambers of the said body of at least 1/3 of the total number of deputies of this chamber, as well as the US CEC, the election commission of the subject of the United States.

Finally, a group of deputies of at least 1/3 of the total number of deputies of the corresponding legislative (representative) body of the state is entitled to apply to the dissolution of the election commission of the municipality, the district election commission for elections to the representative body of the municipality, territorial, district commission the authority of the subject of the United States, or a group of deputies of any of the elected chambers of the said body of at least 1/3 of the total number of deputies of this pale at least 1/3 of the total number of deputies of this body, either the US CEC or the election commission of the US subject, and the corresponding election commission of the municipal district with the application for the disbandment of the election commission of the settlement.

5. In the court in connection with the need to cancel registration of the initiative group for holding a referendum, another group of referendum participants with the appropriate application are authorized to apply: in the conduct of the US-CEC referendum; when a referendum is held by a US subject, the election commission of a constituent entity of the United States; when conducting a local referendum - the election commission of the municipality.

According to the explanation given in the ruling of the Plenum of the Supreme Court of the United States of March 31, 2011 No. 5 "On the Practice of the Court Considering Cases of Protection of Electoral Rights and the Right to Participate in the Referendum of Citizens of the United States", the jurisdiction of cases at first instance is:

1. District courts are considered and resolved cases:

- about challenging actions or omissions (except for inaction in the form of evasion from the decision) of the US CEC, election commissions of the US subjects, district election commissions for elections to the legislative (representative) bodies of state power of the constituent entities of the United States;

- on challenging decisions, actions (inaction) of election commissions of the municipal formation, as well as district election commissions for elections to representative bodies of municipalities, territorial and precinct election commissions;

- on cancellation of registration of a candidate, on cancellation of registration of a candidate included in a registered list of candidates, on cancellation of registration of a list of candidates in municipal elections, and on cancellation of registration of an initiative group for holding a local referendum, another group of participants in such referendum;

- on the disbandment of election commissions of municipalities, district election commissions for elections to representative bodies of municipalities, territorial election commissions, as well as precinct election commissions;

- on challenging decisions, actions (inaction) of public authorities, local self-government bodies, public associations, officials violating electoral rights and the right to participate in a referendum of United States citizens;

- on the appointment of a local referendum.

2. The jurisdiction of the supreme courts of the republics, territorial, regional and corresponding courts are cases:

- on challenging decisions (evasion from decision-making) of election commissions of US subjects (regardless of the level of elections, referendum), district election commissions for elections to legislative (representative) state bodies of the US subjects, with the exception of decisions that leave decisions in force lower-level election commissions, referendum commissions;

- the cancellation of the registration of a candidate, the cancellation of the registration of a candidate included in the registered list of candidates, the cancellation of registration of the list of candidates for elections to legislative (representative) bodies of state power of the United States subjects, as well as the cancellation of registration of an initiative group but the conduct of a referendum of a United States entity , a different group of participants in such a referendum;

- on the disbandment of election commissions of the US subjects, district election commissions for elections to the legislative (representative) bodies of state power of the subjects of the United States;

- on determining the term for appointing deputies of representative (legislative) bodies of state power of the subjects of the United States;

- on determining the term for appointing deputies of representative bodies of local self-government, members of the elected body of local self-government and elected officials of local self-government, provided for by the charter of the municipality, and establishing the procedure for their appointment.

3. The Supreme Court of the United States considers cases:

- on challenging decisions (evasion from decision-making) of the US CEC (regardless of the level of elections, referendum), with the exception of decisions that leave decisions of lower-level election commissions, referendum commissions in force;

- the cancellation of the registration of a candidate for the office of the President of the United States, the cancellation of registration of the federal list of candidates nominated by a political party, the cancellation of registration of a candidate included in a registered federal list of candidates nominated by a political party, as well as the exclusion of a regional group of candidates from the federal list candidates during the election of deputies of the State Duma of the Federal Assembly of the United States;

- on the termination of the activities of the initiative group, the initiative group for the holding of the referendum of the United States;

- about the disbanding of the US CEC.

Justices of the peace do not have the right to consider cases on the protection of electoral rights and the right to participate in the referendum of US citizens under the rules of Ch. 23 and 26 ГПК, as not attributed by the law to their jurisdiction. At the same time, the jurisdiction of magistrates is related to the consideration of cases of administrative offenses provided for by the Code of Administrative Offenses related to violation of electoral rights and the right to participate in a referendum of US citizens, as well as the procedure for holding elections and referendums. Exceptions are cases of this category, the production of which was carried out in the form of an administrative investigation, which are under the jurisdiction of the judges of district courts.

In the law there is a correlation of time for going to court and types of election disputes.

In general, an application to the court can be filed within three months from the day when the applicant became aware or should become aware of violations of electoral legislation, referendum legislation or electoral rights or the right to participate in the referendum of the applicant.

A statement regarding the decision of the election commission, the referendum commission on registration, the refusal to register the candidate (list of candidates), the referendum initiative group, another group of referendum participants, can be brought to court within ten days from the day the election commission, the referendum commission, appealed the decision. At the same time, the specified procedural period is not subject to judicial review. A statement on the cancellation of the registration of a candidate (list of candidates) is submitted to the court no later than eight days before voting day.

In turn, an application to the court for the disbandment of the commission organizing an election, a referendum, may be filed in the period after the end of the election campaign, the referendum campaign, but no later than three months from the day of the end of the election campaign, the campaign of the referendum. An application for the dissolution of another commission may be submitted not later than 30 days before voting day or after the end of the election campaign, referendum campaign, but no later than in three months from the day the grounds for disbanding the commission appear. In the case of a repeat vote, an application to the court to disband the precinct commission may also be submitted in the period after the establishment of the voting results in this section, but not later than seven days until the day of a second vote .

After the publication of the results of the election, referendum, an application for violation of electoral rights or the right to participate in a referendum of citizens that took place during the election campaign, a referendum campaign, may be submitted to the court within one year from the day of official publication of election results or referendum in Otherwise, the application is not subject to satisfaction (see Definition of the US Supreme Court of February 29, 2012 No. 26-G12-2).

The establishment of harsh terms for applying to the justice body is explained by the fact that applying to the court for cases arising from electoral relations often jeopardizes the very conduct of elections (referendum), which is actively used by campaign participants and is one of the most common elements of pre-election political technologies , this, in turn, creates instability of state power (local self-government) and additional expenditures of budgetary funds (AS Naboka).

The time for consideration of applications by the court is also different.

During the period of the election campaign, the referendum campaign, the application submitted to the court prior to voting day must be considered and allowed within five days from the day it was received, but not later than the day preceding the voting day, and the application received on the day preceding day of voting, on the voting day or on the day following the voting day, immediately. If the facts contained in the application require additional verification, the application must be reviewed and resolved no later than ten days after the date of its submission.

The expiration of the time limit does not entail discontinuation of proceedings on the case initiated on the application, and does not prevent the courts, including the courts of appeal, cassation and supervisory instances, to resolve the case on the merits.

The declaration of irregularity in the lists of voters, referendum participants should be considered and allowed within three days from the day of his coming to court, but not on the day of voting - immediately. Statement concerning the decision of the election commission, referendum commission on voting results, on the day before the voting day, results of elections, referendum, must be considered and allowed within two months from the day of his admission to court. The decision on the application for the cancellation of the registration of the candidate (list of candidates) shall be made by the first instance court no later than five days before voting day; on application for cancellation of registration of the initiative group for holding a referendum, another group of referendum participants - no later than three days before voting day; on the application for disbandment of the election commission, referendum commission - no later than 14 days, and during the election campaign, the referendum campaign - no later than three days from the date of receipt of the application to the court.

The procedural order of dealing with cases is as follows. The application is considered by the court with the obligatory participation of the applicant, the representative of the appropriate state authority, local government, political party, other public association, election commission, referendum commission, official, prosecutor. The court is not limited by the rules for the admissibility of means of evidence in the study of evidence. Failure to appear in court of listed persons duly notified of the place and time of the hearing is not an obstacle to consideration and resolution of the substance of the legal dispute.

During the study of cases on the protection of electoral rights and the right to participate in the referendum of citizens during the period of the election campaign, the referendum campaign prior to the day of publication of the results of elections, referendum measures to secure a claim (in Article 260.1 of the CCP for this category of collisions, the term claim ", which can not be considered correct, since the claim is not an appropriate remedy for cases arising out of public legal relations, at least until the legislator has implemented the concept of public or administrative nistrativnyh lawsuits) can not be:

- seizure of ballot papers, ballots for referendum voting, lists of voters, referendum participants, other election documents, referendum documents or their withdrawal;

- prohibition to election commissions, referendum commissions to implement the actions established by law on the preparation and conduct of elections, referendum.

Cases on dissolution of various commissions are considered by the court in a collegiate composition of three professional judges. In this case, the court notifies the election commission, the referendum commission on accepting the application on disbandment of this commission for consideration.

The result of the proceedings in cases of protection of electoral rights and the right to participate in a referendum of citizens is a judicial decision by which the justice agency, in the validity of the application, obliges to satisfy the applicant's claims or otherwise restore his violated rights in full, or (if he determines that the impugned decision , the action (inaction) is completely legal) refuses to meet the requirements.

In other words, the content of the final judicial enforcement laws can be different. In some decisions, the court, on its own discretion, independently formulates an action to be committed, in others - the resolutive part is predetermined by the norm of the federal law. For example, according to the Federal Law "About the basic guarantees of electoral rights and the right to participate in the referendum of citizens of the United States"; the court of the corresponding level cancels the decision of the commission on the results of the voting and the results of the election, may decide to hold a second count of the votes of the voters, referendum participants, if violations of the federal law were committed during the voting or establishing its results and determining the election results. If the violations allowed do not allow to determine with certainty the results of the will of voters, referendum participants, the court may recognize the results of the voting, the results of the elections null and void. Federal Law "On ensuring the constitutional rights of citizens of the United States to elect and be elected to local self-government bodies"; prescribes that in the court decision on the appointment of the election date must be indicated:

- the reasons for appointing the election date, the election commission that should appoint it, and the time period during which the election date is to be appointed;

- a normative legal act on the basis of which elections will be held;

- in case of taking a decision to ensure the constitutional rights of citizens to elect and be elected to a representative body of local self-government - the term of office and the number of deputies of the representative body of local self-government;

- in case of making a decision to ensure the constitutional rights of citizens, to elect an official of local self-government and be elected as an official of local self-government - the name of the elective office of local self-government provided for by the charter of the municipality and the term of office of the person replacing the post;

is a local government or head of a municipal formation or, in accordance with the charter of a municipal formation, another local government official who is charged with enforcing a court decision in terms of ensuring the conduct of elections in accordance with a regulatory legal act determined by the court. In the absence of competent local self-government bodies or local government officials, the execution of the court decision in terms of ensuring the conduct of elections in accordance with the regulatory legal act specified by the court is vested in the executive body of state power of the subject of the United States.

Realizing its own powers in the making of a court decision, the justice body should not, however, invade the competence of those institutions that are assigned certain functions in connection with the conduct of the election campaign.

An appeal against the court's decision, a private complaint about the definition of the court in the case of the protection of electoral rights and the right to participate in a referendum of citizens of the United States made during the period of the election campaign, the referendum campaign prior to voting day, are submitted in a shortened time, within five days from the date of adoption by the court of the decision (determination). Moreover, in Part 3 of Art. 261 ГПК does not say anything about the final form of the final law-enforcement judicial act, although in Art. 321 of the CPC is mentioned. Apparently, the term for handling the appellate complaint begins its course not from the day the decision is made by the court in the final form, but from the moment of announcement of its resolutory part, otherwise the civil proceedings are delayed and may go beyond the time limits of the election process.

A judgment that has entered into legal force is sent to the head of the appropriate state authority or local government, public association, chairman of the election commission, referendum commission, official and is subject to implementation within the time limits established by the court. If the court directives are not complied with without valid reasons, certain measures of responsibility are applied to these subjects (Part 2, Article 206 of the Civil Procedural Code).

A comprehensive analysis of the current legislation testifies to the absence of special norms on the entry into force of decisions immediately affecting the electoral rights of citizens. Meanwhile, there are court decisions that are immediately enforceable, which is not the same, for example, the inclusion of a citizen in the list of voters, referendum participants, and the appointment of an election date (Article 211 of the CCP). Also, at the request of the applicant, the justice body has the right to turn any decision to immediate execution (Article 212 of the CCP). At the same time, it must be remembered that according to Part 4 of Art. 260.1 The decision of the first instance court to cancel the registration of a candidate (list of candidates) can not be immediately executed.

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