Date: Fri, 27 Jan 2012
From: Henning Schroeder <hhs19@t-online.de>
Subject: Golos - Buzin
Prof. Dr. Hans-Henning Schröder
Wissenschaftlicher Direktor
Deutsches Institut für Internationale Politik und Sicherheit
Berlin
Emergency prophylaxis for the elections in Russia
By Andrei Buzin
Chairman of the Interregional Union of Voters, Head of the Monitoring Department of the Association GOLOS, Doctor of Jurisprudence
[A shorter version was published January 10 in Vedomosti]
A lopsided electoral code
The elections in December did not, in terms of the extent of falsification, differ all that much from the 2007 elections and those in the preceding years; this time, however, society reacted far more vigorously. "Russians harness their horses slowly, but they ride fast": For the last six, seven years we have been watching patiently as the governments at various levels have been abusing the electoral code and the election process and now things are suddenly starting to happen... The Fourth and Fifth State Duma have passed more than fifty laws which have changed the electoral code to the point of being unrecognisable and have transformed the elections into a play with a pre-determined cast and an unchanging director. The new laws were introduced in two phases: From 2005 2007, radical changes were brought in to put distance between the citizens and the elections (the introduction of a system of pure proportional representation with the simultaneous expansion of an artificial and guided party system), and from 2008 2011 the deputies dealt on an almost monthly basis with the cosmetic dissection of the electoral laws.
The radical proposals from the president, which have come just a short time after his diametrically opposed comments on the state of the governor elections and the number of political parties, would appear to be a fearful reaction to the mass rallies. In a situation, however, in which these proposals will have no impact on the next national elections and they, furthermore, have been uttered by the departing and not the future president, they primarily represent an attempt to use hasty promises to extinguish the fire of protest. At the same time, calls can be heard from various parties demanding radical consequences to be drawn from the results of the Duma elections, and namely with the aim of evaluating the past elections and of helping the next elections to take place more fairly.
Let us now look at which legal means and in which timeframe the situation of our elections could be improved. Methods which exist outside the legal framework should not be discussed here they will come about of their own accord if the government continues to ignore even those laws which have been tailored specifically to its own wishes.
Regarding the legitimacy of the elections and the Duma resulting from them, there is undoubtedly just one legal path and it is, furthermore, one which does not appear all that complicated at first glance: At the request of one or more parties, the Supreme Court declares the elections to be invalid due to the violations, as these mean that the will of the electorate cannot be truly determined. The Duma elections provided more than enough hard evidence to do this. There is just one small problem: the separation of powers described by the constitution does not exist in Russia and the courts are just part of the Russian corporation of bureaucrats. And every bureaucrat, large or small, knows what he is doing when he says: "Well take it to court then!"
A separation of powers can hardly be created within one year and without efforts to make this happen, this will not be possible during the course of a presidential term either. For this reason, it is safe to assume that we can forget about a legal declaration that the elections have been invalid, just as we can forget the Duma being dissolved as a result of such a declaration. It is true that the State Duma could also be dissolved by the president, but we are hardly threatened by the emergence of such a scenario before the upcoming elections. Following the presidential elections, the situation could change to such an extent that the Duma could be neither here not there.
Furthermore, demands for the Duma to be dissolved would be pointless before a new party system has been created and as long as the current electoral code continues to exist, because the same parties would simply be elected to the Duma again. Even more pointless albeit of symbolic meaning are demands for the head of the Central Election Commission, Vladimir Churov, to resign. There are practically no legal grounds for Churow to be dismissed and his dismissal would have no influence at all on how fair the elections are to be conducted, because this depends on the actual organisers of the elections, the officials in the administrations at the various levels.
For an improvement in the electoral situation, we undoubtedly need to change the electoral code radically. This is a mandatory, but nevertheless not a sufficient prerequisite. Regarding the upcoming presidential elections, it is, however, not currently relevant, as these are already underway and alterations in the electoral process do not extend to elections which are already taking place.
So the question remains whether anything at all can be done in order to ensure that Vladimir Putin's election take place more fairly, or, more accurately speaking, in closer accordance to the constitution, Russian electoral laws and international electoral standards.
The answer is: on the whole no: regarding the final phase of the election process, that is the voting and vote-counting processes yes! The largest shortcoming of our elections is, of course, not to be found in the direct falsifications, but in the lack of a situation of competition and the use of administrative resources, and this can hardly be stopped before March. A reduction in the acts of manipulation which can be carried out directly on the day of the election and during the vote-counting process is, however, entirely possible.
This is possible because the highest level of government seems to be sending out signals indicating its interest in discovering exactly how the actual balance of power lies. From the leader of the nation we are not only given assurances that he is in favour of fair elections, but also concrete proposals for more open and more transparent elections.
At first glance, the installation of video cameras at polling stations and increasing the transparency of ballot boxes seem to be measures towards fair elections which should be taken seriously. This impression is a result of the widely-held opinion, which is, it should be noted, propagated by media and the election commissions, that the falsification of elections takes place exclusively by ballot stuffing. Even if something like this does, bizarrely, continue to take place, this method of election falsification is so clumsy and laborious that it is only implemented by the most amateurish of fraudsters. Just one such act of ballot stuffing can be noticed and also requires the falsification of election documents, namely the voter list, which means that two offences already have to be committed. Additionally, there are many less risky, less laborious and more reliable methods of direct election falsification, which cannot be picked up with the help of video cameras or transparent ballot boxes.
The recently announced bad joke, that election observers would now be able to trace acts of falsification with the help of the Central Election Commission's video cameras, exposes the reality of the situation. The fraudsters are hardly going to carry out their dirty deeds in the very places which are under observation from the cameras. There are other, more comfortable places, such as the territorial election commissions, where, in all comfort and under the leadership of an expert from the local administration, the protocols from the election commissions in the precincts can simply be rewritten.
This small A-Z of election falsification methods should not be continued here. Whatever was behind the "leader of the nation"'s idea when he suggested using video cameras: This revamp would at most be an excellent way of helping the right people get their hands on 14 billion roubles of public money.
For those who are familiar with how our elections work in practice, such suggestions can be plainly and simply described as ridiculous. The process of voting and vote-counting is more strictly regulated by legislation than all other stages of an election and the penalties for abuse of the rules are extremely tough. The problem is simply that the law is broken year in, year out, and as a result with extremely few exceptions no punishments are brought to bear. On the contrary a violation of the electoral code often leads to appraisal. Under such circumstances, those who organise the elections have developed a habit of ignoring the laws and any fear of the penal code evaporates.
The lack of trust in those who organise the elections begs for a massive observation of the work in the election commissions. An election observer is different from a video camera insofar as he can look in different directions, can adjust to a situation and knows that electoral falsification can be carried out in a myriad of ways. For precisely this reason, real election observers (there are also fake ones!) represent, as opposed to cameras and transparent ballot boxes, a danger for those looking to falsify elections. They are so unwanted that attempts are made to eject them from their post by violating the legally foreseen procedures, as could be observed on a grand scale at all past elections.
So the first thing that these guardians of honest elections should tackle would be putting an end to the practice of ejecting election observers from the polling stations. One such suggestion did, incidentally, recently come from presidential candidate Mikhail Prokhorov. Could it not at least be tried? Could the Central Election Commission not issue an implementing provision on the question of ejecting election observers? An appropriate text was, incidentally, already presented to the Central Election Commission one month before the parliamentary elections. Additionally, a change in the penal code relating to the illegal removal of election observers could be implemented it would come into force in time for the presidential elections. Through all of these measures, the 14 billion could also be saved, because election observers would then do the same job with their own cameras and for their own money, which otherwise the budget funds are supposed to be spent on.
Secondly, it is about time that the demagogic arguments came to an end, which state that election observers are acting in infringement of data protection laws when they inspect the distribution of ballot papers and the electoral registers. Such arguments are generally a result of manipulated electoral registers and the unlawful distribution of ballot papers. An election observer must have the right to be able to see at all times which entries are being made in the voter list and whether these conform to the law.
Generally, the election commissions should be made aware of the fact that a violation of the rights of election observers represents a grave breach of electoral law, which should at least lead to a repeat of the vote-count in the election precinct. The election commissions must be reminded that the law envisages that all actions of the election commissions can be observed. Similarly, they must be reminded that the law does not envisage any restrictions on the freedom of movement of the election observers.
Thirdly, experience shows that the election commissions in the precincts almost universally fail to adhere to the legally prescribed procedures during the vote-counting process (reading out the votes cast while sorting the ballot papers, counting by turning over the ballot papers in each pile which is sorted). This widespread flaunting of the law at the vote-counting stage remains without consequence, beyond the fact that it makes it impossible to control the correctness of the count. Let us assume that cameras installed in response to the suggestion from one of the presidential candidates identify a violation of the law. Then what?
Fourthly, with disregard for the strict laws and the instructions from the Central Election Commission, the practice is continued of failing to give election observers a copy of the election protocol or handing out falsely authenticated copies. At the same time, not one single case is known where somebody has been prosecuted for this breach of the law. It should be noted that such violation allow our courts to reject complaints attacking falsified election results.
Fifthly, the election results which are determined in the polling stations undergo a miraculous transformation in the territorial election commissions. This is possible for a number of reasons, one of which is that the law allows for the possibility of compiling so-called "repeat protocols". The procedure for compiling these repeat protocols, as with the procedure with which protocols are accepted by the territorial election commissions, is insufficiently clearly described in law. Here too, it has been suggested to the Central Election Commission that they issue an implementing provision on this question (no alteration to the law, but just implementing provision, which the Central Election Commission has the authority to issue). The Central Election Commission was also unwilling to take advantage of this opportunity.
We are looking at a large number of practices, which are indisputably of relevance for the prosecution, when there are discrepancies between the protocol copies which are given to election observers and the official election results. Contrary to healthy common sense and in spite of clear evidence, our courts refuse in such cases to declare the election results in the affected precincts to be invalid.
Sixthly, the law lays out the conditions, under which "all actions of the commission members when accepting the protocols of subordinate commissions, when collating the data of these protocols and when compiling a protocol on the result of the vote" must take place and states that this must be in such a way that they "are in view of the members of the election commission and the election observers". In spite of this, the most important actions, such as the entry of data into the State Automatic System "Vybory" [Elections] and the final acceptance (or refusal to accept) the election protocols from the election commissions in the precincts also take place where they are not visible to the election observers, in separate rooms. This practice must and can be changed.
So there are a number of measures which would be easy to implement, if the wish for honest elections and an honest vote-counting process is a genuine one. And implementing these measures is completely within the power of those who are recommending video cameras and transparent ballot boxes; furthermore, they place a far lesser burden on the tax-payer. These are measures relating to the application of the law and not to legislation. Those who apply the law, even if they are, nominally speaking, not dependent on the government, quickly recognise the signals emanating from the centre of power.
The Central Election Commission could issue implementing provisions on the removal of election observers, on the authorisation of protocol copies and the conditions under which the protocols are to be accepted by the superior commissions (a text practically containing these statements has already been written for the Central Election Commission), and it could strictly control adherence to these rules.
The Supreme Court could make it clear to the courts at lower level that the copies of protocols presented to them are to be treated just as any other normal piece of written evidence regardless of possible errors in the authorisation, for which those carrying out the authorisation and not the election observers bear responsibility. Beyond this, the Supreme Court could clarify that an unlawful removal of election observers, in contravention of election procedures, represents a grave violation of the law, for which the chairman of the election commission involved is to be prosecuted according to article 5.6 of the Russian law on administrative violations of the law, which would at least lead to a new vote count in the precinct.
The public prosecution services could be given the directive to implement administrative legal processes dealing with the infringement of voters' rights more quickly and the investigative authorities could be directed to instigate prosecution processes more quickly in cases of falsification of electoral documents or election results.
It should be impressed upon the government bodies that they must finally cease in their wielding of power over all the aforementioned authorities and that they, and be it through clenched teeth, must finally observe one of the fundamental principles of true elections namely that executive authority does not interfere in the election process.
Then there will be no need for props in the form of video cameras and glass ballot boxes.
Keywords: Russia, Government, Politics - Russia News - Russia
Date: Fri, 27 Jan 2012
From: Henning Schroeder <hhs19@t-online.de>
Subject: Golos - Buzin
Prof. Dr. Hans-Henning Schröder
Wissenschaftlicher Direktor
Deutsches Institut für Internationale Politik und Sicherheit
Berlin
Emergency prophylaxis for the elections in Russia
By Andrei Buzin
Chairman of the Interregional Union of Voters, Head of the Monitoring Department of the Association GOLOS, Doctor of Jurisprudence
[A shorter version was published January 10 in Vedomosti]
A lopsided electoral code
The elections in December did not, in terms of the extent of falsification, differ all that much from the 2007 elections and those in the preceding years; this time, however, society reacted far more vigorously. "Russians harness their horses slowly, but they ride fast": For the last six, seven years we have been watching patiently as the governments at various levels have been abusing the electoral code and the election process and now things are suddenly starting to happen... The Fourth and Fifth State Duma have passed more than fifty laws which have changed the electoral code to the point of being unrecognisable and have transformed the elections into a play with a pre-determined cast and an unchanging director. The new laws were introduced in two phases: From 2005 2007, radical changes were brought in to put distance between the citizens and the elections (the introduction of a system of pure proportional representation with the simultaneous expansion of an artificial and guided party system), and from 2008 2011 the deputies dealt on an almost monthly basis with the cosmetic dissection of the electoral laws.
The radical proposals from the president, which have come just a short time after his diametrically opposed comments on the state of the governor elections and the number of political parties, would appear to be a fearful reaction to the mass rallies. In a situation, however, in which these proposals will have no impact on the next national elections and they, furthermore, have been uttered by the departing and not the future president, they primarily represent an attempt to use hasty promises to extinguish the fire of protest. At the same time, calls can be heard from various parties demanding radical consequences to be drawn from the results of the Duma elections, and namely with the aim of evaluating the past elections and of helping the next elections to take place more fairly.
Let us now look at which legal means and in which timeframe the situation of our elections could be improved. Methods which exist outside the legal framework should not be discussed here they will come about of their own accord if the government continues to ignore even those laws which have been tailored specifically to its own wishes.
Regarding the legitimacy of the elections and the Duma resulting from them, there is undoubtedly just one legal path and it is, furthermore, one which does not appear all that complicated at first glance: At the request of one or more parties, the Supreme Court declares the elections to be invalid due to the violations, as these mean that the will of the electorate cannot be truly determined. The Duma elections provided more than enough hard evidence to do this. There is just one small problem: the separation of powers described by the constitution does not exist in Russia and the courts are just part of the Russian corporation of bureaucrats. And every bureaucrat, large or small, knows what he is doing when he says: "Well take it to court then!"
A separation of powers can hardly be created within one year and without efforts to make this happen, this will not be possible during the course of a presidential term either. For this reason, it is safe to assume that we can forget about a legal declaration that the elections have been invalid, just as we can forget the Duma being dissolved as a result of such a declaration. It is true that the State Duma could also be dissolved by the president, but we are hardly threatened by the emergence of such a scenario before the upcoming elections. Following the presidential elections, the situation could change to such an extent that the Duma could be neither here not there.
Furthermore, demands for the Duma to be dissolved would be pointless before a new party system has been created and as long as the current electoral code continues to exist, because the same parties would simply be elected to the Duma again. Even more pointless albeit of symbolic meaning are demands for the head of the Central Election Commission, Vladimir Churov, to resign. There are practically no legal grounds for Churow to be dismissed and his dismissal would have no influence at all on how fair the elections are to be conducted, because this depends on the actual organisers of the elections, the officials in the administrations at the various levels.
For an improvement in the electoral situation, we undoubtedly need to change the electoral code radically. This is a mandatory, but nevertheless not a sufficient prerequisite. Regarding the upcoming presidential elections, it is, however, not currently relevant, as these are already underway and alterations in the electoral process do not extend to elections which are already taking place.
So the question remains whether anything at all can be done in order to ensure that Vladimir Putin's election take place more fairly, or, more accurately speaking, in closer accordance to the constitution, Russian electoral laws and international electoral standards.
The answer is: on the whole no: regarding the final phase of the election process, that is the voting and vote-counting processes yes! The largest shortcoming of our elections is, of course, not to be found in the direct falsifications, but in the lack of a situation of competition and the use of administrative resources, and this can hardly be stopped before March. A reduction in the acts of manipulation which can be carried out directly on the day of the election and during the vote-counting process is, however, entirely possible.
This is possible because the highest level of government seems to be sending out signals indicating its interest in discovering exactly how the actual balance of power lies. From the leader of the nation we are not only given assurances that he is in favour of fair elections, but also concrete proposals for more open and more transparent elections.
At first glance, the installation of video cameras at polling stations and increasing the transparency of ballot boxes seem to be measures towards fair elections which should be taken seriously. This impression is a result of the widely-held opinion, which is, it should be noted, propagated by media and the election commissions, that the falsification of elections takes place exclusively by ballot stuffing. Even if something like this does, bizarrely, continue to take place, this method of election falsification is so clumsy and laborious that it is only implemented by the most amateurish of fraudsters. Just one such act of ballot stuffing can be noticed and also requires the falsification of election documents, namely the voter list, which means that two offences already have to be committed. Additionally, there are many less risky, less laborious and more reliable methods of direct election falsification, which cannot be picked up with the help of video cameras or transparent ballot boxes.
The recently announced bad joke, that election observers would now be able to trace acts of falsification with the help of the Central Election Commission's video cameras, exposes the reality of the situation. The fraudsters are hardly going to carry out their dirty deeds in the very places which are under observation from the cameras. There are other, more comfortable places, such as the territorial election commissions, where, in all comfort and under the leadership of an expert from the local administration, the protocols from the election commissions in the precincts can simply be rewritten.
This small A-Z of election falsification methods should not be continued here. Whatever was behind the "leader of the nation"'s idea when he suggested using video cameras: This revamp would at most be an excellent way of helping the right people get their hands on 14 billion roubles of public money.
For those who are familiar with how our elections work in practice, such suggestions can be plainly and simply described as ridiculous. The process of voting and vote-counting is more strictly regulated by legislation than all other stages of an election and the penalties for abuse of the rules are extremely tough. The problem is simply that the law is broken year in, year out, and as a result with extremely few exceptions no punishments are brought to bear. On the contrary a violation of the electoral code often leads to appraisal. Under such circumstances, those who organise the elections have developed a habit of ignoring the laws and any fear of the penal code evaporates.
The lack of trust in those who organise the elections begs for a massive observation of the work in the election commissions. An election observer is different from a video camera insofar as he can look in different directions, can adjust to a situation and knows that electoral falsification can be carried out in a myriad of ways. For precisely this reason, real election observers (there are also fake ones!) represent, as opposed to cameras and transparent ballot boxes, a danger for those looking to falsify elections. They are so unwanted that attempts are made to eject them from their post by violating the legally foreseen procedures, as could be observed on a grand scale at all past elections.
So the first thing that these guardians of honest elections should tackle would be putting an end to the practice of ejecting election observers from the polling stations. One such suggestion did, incidentally, recently come from presidential candidate Mikhail Prokhorov. Could it not at least be tried? Could the Central Election Commission not issue an implementing provision on the question of ejecting election observers? An appropriate text was, incidentally, already presented to the Central Election Commission one month before the parliamentary elections. Additionally, a change in the penal code relating to the illegal removal of election observers could be implemented it would come into force in time for the presidential elections. Through all of these measures, the 14 billion could also be saved, because election observers would then do the same job with their own cameras and for their own money, which otherwise the budget funds are supposed to be spent on.
Secondly, it is about time that the demagogic arguments came to an end, which state that election observers are acting in infringement of data protection laws when they inspect the distribution of ballot papers and the electoral registers. Such arguments are generally a result of manipulated electoral registers and the unlawful distribution of ballot papers. An election observer must have the right to be able to see at all times which entries are being made in the voter list and whether these conform to the law.
Generally, the election commissions should be made aware of the fact that a violation of the rights of election observers represents a grave breach of electoral law, which should at least lead to a repeat of the vote-count in the election precinct. The election commissions must be reminded that the law envisages that all actions of the election commissions can be observed. Similarly, they must be reminded that the law does not envisage any restrictions on the freedom of movement of the election observers.
Thirdly, experience shows that the election commissions in the precincts almost universally fail to adhere to the legally prescribed procedures during the vote-counting process (reading out the votes cast while sorting the ballot papers, counting by turning over the ballot papers in each pile which is sorted). This widespread flaunting of the law at the vote-counting stage remains without consequence, beyond the fact that it makes it impossible to control the correctness of the count. Let us assume that cameras installed in response to the suggestion from one of the presidential candidates identify a violation of the law. Then what?
Fourthly, with disregard for the strict laws and the instructions from the Central Election Commission, the practice is continued of failing to give election observers a copy of the election protocol or handing out falsely authenticated copies. At the same time, not one single case is known where somebody has been prosecuted for this breach of the law. It should be noted that such violation allow our courts to reject complaints attacking falsified election results.
Fifthly, the election results which are determined in the polling stations undergo a miraculous transformation in the territorial election commissions. This is possible for a number of reasons, one of which is that the law allows for the possibility of compiling so-called "repeat protocols". The procedure for compiling these repeat protocols, as with the procedure with which protocols are accepted by the territorial election commissions, is insufficiently clearly described in law. Here too, it has been suggested to the Central Election Commission that they issue an implementing provision on this question (no alteration to the law, but just implementing provision, which the Central Election Commission has the authority to issue). The Central Election Commission was also unwilling to take advantage of this opportunity.
We are looking at a large number of practices, which are indisputably of relevance for the prosecution, when there are discrepancies between the protocol copies which are given to election observers and the official election results. Contrary to healthy common sense and in spite of clear evidence, our courts refuse in such cases to declare the election results in the affected precincts to be invalid.
Sixthly, the law lays out the conditions, under which "all actions of the commission members when accepting the protocols of subordinate commissions, when collating the data of these protocols and when compiling a protocol on the result of the vote" must take place and states that this must be in such a way that they "are in view of the members of the election commission and the election observers". In spite of this, the most important actions, such as the entry of data into the State Automatic System "Vybory" [Elections] and the final acceptance (or refusal to accept) the election protocols from the election commissions in the precincts also take place where they are not visible to the election observers, in separate rooms. This practice must and can be changed.
So there are a number of measures which would be easy to implement, if the wish for honest elections and an honest vote-counting process is a genuine one. And implementing these measures is completely within the power of those who are recommending video cameras and transparent ballot boxes; furthermore, they place a far lesser burden on the tax-payer. These are measures relating to the application of the law and not to legislation. Those who apply the law, even if they are, nominally speaking, not dependent on the government, quickly recognise the signals emanating from the centre of power.
The Central Election Commission could issue implementing provisions on the removal of election observers, on the authorisation of protocol copies and the conditions under which the protocols are to be accepted by the superior commissions (a text practically containing these statements has already been written for the Central Election Commission), and it could strictly control adherence to these rules.
The Supreme Court could make it clear to the courts at lower level that the copies of protocols presented to them are to be treated just as any other normal piece of written evidence regardless of possible errors in the authorisation, for which those carrying out the authorisation and not the election observers bear responsibility. Beyond this, the Supreme Court could clarify that an unlawful removal of election observers, in contravention of election procedures, represents a grave violation of the law, for which the chairman of the election commission involved is to be prosecuted according to article 5.6 of the Russian law on administrative violations of the law, which would at least lead to a new vote count in the precinct.
The public prosecution services could be given the directive to implement administrative legal processes dealing with the infringement of voters' rights more quickly and the investigative authorities could be directed to instigate prosecution processes more quickly in cases of falsification of electoral documents or election results.
It should be impressed upon the government bodies that they must finally cease in their wielding of power over all the aforementioned authorities and that they, and be it through clenched teeth, must finally observe one of the fundamental principles of true elections namely that executive authority does not interfere in the election process.