The Supreme Court clarified how to deal with electoral disputes

The Supreme Court will explain how to register as a candidate for elections from a pre-trial detention center, what documents are needed to confirm the renunciation of foreign citizenship and the right of a candidate illegally removed from the election to compensation for harm. The Supreme Court is finalizing the decision of the plenum, which will provide answers to these and other questions arising in the consideration of electoral disputes. Experts, however, note that the document does not imply revolutionary changes, in most cases summarizing the decisions already taken by the courts and recommendations that are difficult to implement in practice.

The Supreme Court (SC) has prepared clarifications on issues arising from the consideration of electoral disputes. The chairman of the court, Vyacheslav Lebedev, announced them back in February, at a meeting following the results of last year. As a result, we got an exhaustive draft document with a volume of more than 70 sheets, which Kommersant managed to get acquainted with. In part, he repeats the positions formulated by the Supreme Court back in 2011, when it last addressed this topic. But the explanations have become more detailed, and new provisions have appeared.

For example, the Supreme Court decided to clarify that not only the election commission (on the basis of the decision) has the right to apply to the court with a claim for the protection of electoral rights, but also its chairman – “by virtue of his position.” However, the issue is still debatable – some paragraphs are given in several versions, and in one of the proposed versions of the text there is no such paragraph. But in another, it is additionally specified that the chairman of the commission has the right to represent its interests in court without an appropriate power of attorney and documents confirming his status. At the same time, he does not need a higher legal education, unlike other members of the election commission, who must have both a power of attorney and a legal education for such a case.

Also, while the question is being discussed, should a deviation from the established number of lines on the signature sheet be considered a violation. One option clarifies that this in itself is not grounds for invalidating all signatures. Another states that such a violation precludes reading the sheet in a machine-readable way, violates the equality of candidates and entails the rejection of all voters’ autographs. The court does not yet have a final position on the issue of whether it should be removed from the elections for the use of fonts in campaign materials without a special license.

Many clarifications are related to recent changes in legislation. For example, in connection with the emergence of multi-day voting, it was necessary to clarify that the time limit for filing a lawsuit to remove a candidate is counted from the first day of voting, and not from the last. The Supreme Court also recalls that instead of the arrested candidate, his lawyer can submit documents for registration, however, the signature and application of such a citizen must be notarized.

An entire chapter is devoted to the limitations of passive suffrage – for example, it is specified that the fact of termination of citizenship of a foreign state must be confirmed by an appropriate document issued by the authorized body of this state, and by sending a corresponding notification to the Ministry of Internal Affairs. Simply initiating the procedure for renunciation of the citizenship of a foreign state for registration as a candidate is not enough.

The Supreme Court also intends to clarify that involvement in the activities of an extremist organization should be understood as an expression of support for such activities by statements and other actions – for example, the provision of funds, organizational, methodological, advisory or other assistance, participation in certain events of the association. The document explains that any evidence can be presented in court for such a case: a screenshot from a page on a social network, a recording of a public speech in support of the activities of the association, judicial acts, and others. Such actions entail legal consequences, even if they took place before the day the court decision to liquidate or ban the activities of a terrorist or extremist organization enters into force, the Supreme Court insists.

The draft resolution clarifies that the word “no” instead of the word “absent” in the section on foreign real estate of a candidate, in his statement of consent to run, does not prevent registration, because both have the same meaning. But a dash is not allowed, since the entry “supposes precisely the verbal expression of the presence or absence of such property.” Registration should not be denied because of false information about education, place of work or position held. But the discrepancy between the information in the signature list and official certificates is the basis for invalidating the signature: the draft resolution emphasizes the “presumption of reliability” of the information contained in official certificates. However, this does not exclude the possibility of challenging them, adds the Sun.

If the refusal to register a candidate or a list was later found to be illegal, the election could also be canceled, reminds the Supreme Court. However, he adds, based on the criterion of proportionality, the court has the right to declare it impossible to hold repeat elections in order to restore passive suffrage. In this case, the candidate may be recognized as entitled to use other compensatory mechanisms, for example, compensation for harm.

Experts say that so far such compensation is out of the realm of fantasy. The current legislation does not provide for an appropriate procedure, says electoral lawyer Roman Smirnov. Basically, the explanations of the Supreme Court simply generalize the already established practice: for example, there are known cases of deregistration for copyright infringement, and a competent electoral lawyer will definitely stock up on an agreement on the use of fonts. Chairmen, according to Mr. Smirnov, also have no problems with participation in courts – “routinization” of practice is needed, rather, so that the courts can make decisions as quickly as possible; this is important given the reduced deadlines in electoral processes.

Other lawyers also do not see the revolution in the draft resolution. The clarification will not facilitate the registration procedure for those arrested on remand: it is difficult for a notary to get into a pre-trial detention center, and the head of the institution, who also has the right to certify documents, does not seek to help, for obvious reasons, notes, in particular, electoral lawyer Anton Rudakov.

His colleague in electoral jurisprudence Alexei Rybin believes that the Supreme Court is developing an “anti-candidate” approach, which is associated with an extremely critical attitude towards opposition candidates, who today are virtually deprived of the right to make a mistake. This invisible barrier is difficult to overcome even with a qualified legal adviser, the expert says, and the time to soften this vector, apparently, has not yet come.

Anastasia Kornya