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7/26/2019 Election Monitoring ENG

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May 22 Local Self-Government Elections: Evaluation of Post-Election Period, Complaints

Process and Court Disputes

Post-election monitoring for the May 22 local self-government elections uncovered a number of

deficiencies in complaints process in district electoral commissions (DECs) and in courts. DECs

dealt with complaints that sought disciplinary liability of precinct electoral commission (PEC)members in an inconsistent manner. In addition, courts interpretation of provisions that apply to

electoral disputes was wrong and in conflict with its own practice. Court decisions clearly

illustrated ambiguity of individual provisions that regulate electoral disputes and superficial

approach towards electoral disputes, possibly because of time constraints.

Evaluation of complaints process in DECs

During the May 22, 2016 local self-government by-elections, ISFED filed 11 complaints with

DECs over violations during voting process, counting and tabulation of votes and irregularities in

summary reports. In most of the complaints ISFED sought imposition of disciplinary liability on

PEC members. Five complaints were successful, two were not and remaining four complaintswere not considered.

Majority of violations were found in the voting process and during counting of votes, some ofwhich included: electoral documentation not properly filled out, voter signatures missing, loss of

a ballot from an electoral district and more.

1. At Kaspi Precinct no.37- an IDP voted without presenting an IDP card;2. At Kaspi Precinct no.30 a vote was cast outside the polling booth;

3. At Kaspi Precinct no.32- information about voters on the list of mobile ballot box was

missing from the unified list of voters;4. At Kaspi Precinct no.30 inconsistencies between control sheets were found during

counting of votes

5.

At Ozurgeti Precinct no.59 number of ballots in the ballot box exceeded number ofsignatures by one;

6. At Tskaltubo Precinct no.52 information about voters on the list of mobile ballot box

was missing from the unified list of voters;

7. At Tskatubo Precinct no.50 - a voter placed his ballot into the ballot box withoutplacing it in the envelope first;

8. At Tskaltubo Precinct no.49 PEC Secretary failed to include address of the first voter

in the control sheet;9. At Tskaltubo Precinct no.51 voter signature was missing from the list of mobile ballot

box;

10.At Gldani Precinct no.21 number of voter signatures exceeded number of ballots inthe ballot box by one;

11.At Gldani Precinct no.16 PEC registrar forgot to ask a voter to sign along his name on

the list;

ISFED filed complaints in the following DECs:


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Name of

district

Number of

complaints

Successful

complaints

Not successful

complaints

Not considered Court

Tskaltubo 4 2 - 2 Rejected

Kaspi 4 3 1

Ozrugeti 1 1

Gldani 2 2 Rejected

We identified several problematic trends in the complaints process that will seriously hinder the

ability of monitoring organizations to observe upcoming elections and file complaints.

Whenever a PEC member violated the Election Code, ISFED filed a complaint with

corresponding DEC, as prescribed by law, and demanded imposition of disciplinary liability onPEC member concerned. After reviewing complaints and examining their foundation, DECs

adopted decisions that granted or rejected claims of ISFED. This was the case in Kaspi and

OzurgetiDECs.

On the other hand, Tskaltubo and GldaniDECs followed conflicting and inconsistent standards

for imposition of disciplinary liability requested by ISFEDs complaints. Specifically, Tskaltubo

DEC refused to consider complaints that concerned violations that had not been recorded in thePEC Election Day logbook, and it ruled in favor of complaints that concerned violations that had

been recorded in the logbook.

Gldani DEC followed completely different set of standards. It refused to consider any of the

complaints, whether they had been recorded in the logbook or not. Moreover, ISFEDs observer

at the electoral district that had not personally witnessed the violation but had filed a complaintin the DEC based on the PEC observers report of violation, were deemed unauthorized. The

DEC representatives claimed that the complaint should have been filed by the observer that had

personally witnessed the violation at the polling station.

Evaluation of Complaints Process in Courts

ISFED filed in court to appeal decisions of Tskaltuboand GldaniDECs not to consider certaincomplaints.

Tbilisi and Kutaisi city and appellate courts upheld arguments of Gldani and Tskaltubo

commissions and did not change their decisions, which contradicts a decision made by BatumiCity Court in 2013 about a similar issue. Both city and appellate courts upheld the position of

DECs in that imposition of a disciplinary liability can be requested by a monitoring organization,

if:

1. an application or a complaint about a violation is filed with the PEC concerned;

2. a complaint seeking imposition of a disciplinary liability can be filed by an observer thatreported the violation.


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Courts interpretation of Articles 72-73 in conjunction with Article 28 was incorrect, which

created a precedent that violates the spirit of the electoral law. In particular, disciplinarymeasures for PEC members are regulated by Article 28 of the Election Code stipulating that if a

PEC member violates obligations envisaged by the Electoral Code, s/he will be imposed with a

disciplinary liability. For imposition of a disciplinary liability on PEC members, a higherelectoral commission relies on the rules of simple administrative proceedings established by the

General Administrative Code of Georgia. Therefore, a monitoring organization should file

complaints to only to corresponding DECs. If a monitoring organization files a complaint with a

PEC, it will not be considered because PECs have no authority to consider such complaints.

Apart from this, an individual authorized to file an application/complaint with the EMB

demanding imposition of a disciplinary or administrative liability implies both an observer and amonitoring organization, as prescribed by para.3 of Article 39 of the Election Code. This means

that when an observer notifies the monitoring organization about a violation of voting and

polling procedures, the organization is authorized to apply to corresponding electoral

commission through an application filed by any of its observers. For this purpose, one should notdifferentiate between a monitoring organization and its observer and view them as different

subjects.

This was the position of Batumi City Court in 2013 and the standard followed by other electoral

districts for years, while monitoring organizations filed complaints with DECs for disciplinary

liability in conformity with the requirements of the Election Code, the courts decision and thepractice of DECs.

During court hearings in both city and appellate courts of Tbilisi, judges ignored the principle ofequality of arms and adversarial nature of proceedings, and often acted as a party in favor of the

EMB, not allowing applicants to express their position in an exhaustive manner. Additionally,

judges in city and appellate courts lacked familiarity with the Election Code in general andprovisions of electoral disputes in particular.

DECs and courts were giving unsolicited advice to the monitoring organization by saying, for

instance: an observer at a polling station should write a complaint addressed to DEC and give itto the mobile team; a complaint should be filed the following day, etc., which can be viewed

as interference with activities of a monitoring organization.

Tbilisi City Court communicated its decision to ISFED three hours before expiration of the

deadline for appealing, giving the latter an extremely limited period of time to prepare an appeal

and file it in court.

Courts decisions clearly illustrated ambiguity of regulations that apply to electoral disputes and

the fact that DECs utilize these regulations in an inconsistent manner.

Timeframe for consideration of electoral disputes in court is unreasonably limited, while courts

lack adequate qualifications.


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May 22, 2016 local self-government by-elections were held in seven majoritarian districts.

ISFED monitored the elections through 29 short-term observers, 7 district observers and mobile

teams.