policy paper

Electoral disputes as an
insurmountable problem of
the electoral administration

Elene Nizharadze
September, 2019
Introduction Complaint statistics

Quality of elections can be evaluated based on During the pre-election period of the first and the
a number of criteria, including electoral dispute second round of the presidential election of Geor-
resolution process and analysis of whether this gia, ISFED filed 42 complaints with the electoral
process allows to effectively react to electoral administration, including:
violations. Importance of electoral disputes may
sometimes be underestimated or public may not • 29 complaints concerning campaigning by
always pay proper attention to this process, how- civil servants during work hours using a social
ever, the way relevant authorities handle and re- networking site (Facebook);
act to complaints/applications filed is essential
for ensuring free, equal and competitive elector- • 5 complaints concerning use of administra-
al environment. Their objectivity, impartiality and tive resources;
professionalism are directly related to and influ-
ence creation of a democratic electoral environ- • 4 complaints on presence of unauthorized
ment. individuals at campaign events. Three cases in-
volved local self-government employees and 1
The purpose of this document is to provide a case involved an electoral commission member;
retrospective overview of the practice of resolv-
ing electoral disputes about problematic issues • 1 complaint on incitement of strife;
identified during the 2018 presidential election
by the electoral administration, as the major ac- • 1 complaint on participation of an alien in
tor in electoral dispute resolution, and evaluation campaigning;
of effectiveness of the electoral administration’s
response especially to violations in the election • 1 complaint on campaigning by clergymen;
campaign period. Notably, last year ISFED ana-
lyzed the practice of resolving electoral disputes • 1 complaint on bookmaking regarding elec-
by the electoral administration during the cam- tions.
paign prior to the 2017 self-government elec-
tions,1 so it is interesting to see if the electoralFrom the complaints filed, only 4 were satisfied
administration’s performance in this area has im- including 1 by the CEC and 3 by DECs. All four
proved and if it has been able to address the complaints concerned use of administrative re-
existing challenges. sources. The protocols of offence drawn up were
referred to relevant courts for further actions. In
As to the complaints process on and after Elec- three cases, the court released the persons con-
tion Day, ISFED believes that deliberate efforts cerned from the administrative liability, based on
of the electoral administration not to satisfy com- art.22 of the Code of Administrative Offences,3
plaints and not to impose sanctions on commis- and issued only a verbal warning.
sion members that have violated the law render
submission and adjudication of complaints point- Below we briefly summarize interpretations made
less.2 by the electoral administration on most important
issues and related problems, which may have a
negative effect on elections in future.

1 „Pre-election disputes: Achilles heel of the electoral administration”, March 2018, International Society for Fair Elections and Democracy, https://bit.ly/2Z3LtK5
2 The standard of electoral complaints adjudication at DECs has markedly declined, 7 November 2018, ISFED,
http://old.isfed.ge/main/1440/eng/
3 “If a petty administrative offence is committed, the body (official) authorized to decide the case may release the offender from administrative liability with only a verbal
warning. A verbal warning shall not be used if the same action has been re-committed or if a verbal warning has been issued against the offender based on this article,
due to the same action committed in the past.”

1
Campaigning using social electoral administration and NGOs prior to every
networking sites election, to ensure consistent use of problematic
norms. The CEC refused to use this opportuni-
ty and chose narrow interpretation of the norm
At the 2017 local self-government elections, again. Based on the CEC proposal it was re-
social networking sites emerged as means for corded in the memorandum that campaigning
exerting influence on elections. The increasing using personal social media accounts amounts
trend of using social networking sites for elec- to a violation if it is carried out using communi-
tion campaigning, not only in Georgia but also in cation and other technical means funded from
developed democracies, made it clear that so- the central or local budget.7 ISFED did not agree
cial media can have a significant effect on the with this definition. Viewing campaigning using
outcome of elections. It was expected that so- social media only in the context of use of admin-
cial networking sites and in particular, Facebook istrative resources is wrong on the one hand and
would be used at a larger scale and more active- ineffective on the other, because in this case it is
ly for the 2018 presidential election. Under such essentially impossible to establish the use of ad-
circumstances, it was critically important that the ministrative resources. This requires more time
electoral administration effectively responded to and investigation, which the electoral adminis-
violations and challenges identified in connection tration is not in the position to do, unlike finding
to social media, in order to ensure a fair elector- the fact of campaigning with the use of social
al environment. The issue concerned campaign- networking sites. The CEC did not agree with
ing by civil servants during work hours, using arguments of the organization. ISFED still signed
social networking sites and in particular, Face- the memorandum, in order to prevent further es-
book. However, based on a narrow and formal calation of the already tense environment that
interpretation of the law, the electoral adminis- existed during the period of pre-election cam-
tration found that the legislation does not regu- paign and to allow the electoral administration to
late the issue of campaigning using a personal use its own initiative in practice.
social media account, even during work hours.
With these decisions, the electoral administration Therefore, it is interesting to see if the electoral
encouraged misuse of personal social media ac- administration has been able to effectively re-
counts by civil servants for campaigning.4 spond to campaigning by civil servants through
social networking sites during work hours, pur-
Because the electoral administration did not find suant to the definition introduced by the CEC in
any problem and cited law to justify its decisions, the memorandum on use of administrative re-
NGOs5 submitted a recommendation for legisla- sources.
tive amendments, which proposed defining the
notion of campaigning in more detail and es- As noted earlier, ISFED filed 29 complaints with
tablishing that dissemination of political appeals electoral commissions concerning campaigning
through personal social media accounts consti- by civil servants through personal social media
tutes campaigning.6 Unfortunately, the legislature accounts during work hours. The organization
did not take the recommendation into account. demanded that electoral commissions investi-
gate possible violations of campaigning rules on
To avoid repeating the problem, NGOs offered the one hand and possible use of administrative
the CEC to include a more detailed definition resources on the other. Use of administrative re-
of campaigning in the Memorandum on use of sources may have taken place because civil ser-
administrative resources, signed between the vants were campaigning during work hours and

4 „Pre-election disputes: Achilles heel of the electoral administration”, March 2018, International Society for Fair Elections and Democracy, https://bit.ly/2Z3LtK5
5 ISFED, Georgian Young Lawyers’ Association, Transparency International – Georgia
6 „Recommendations for improving the electoral environment”, ISFED, GYLA, TI – Georgia, 2018, https://isfed.ge/eng/rekomendatsiebi/rekomendatsiebi-saarchevno-gare-
mos-gaumjobesebisatvis
7 The Memorandum on use of administrative resources for the 28 October 2018 presidential election of Georgia, http://cesko.ge/res/docs/Memorandumi2018.pdf

2
more importantly, according to the memorandum • A guest borrowed the phone and pub-
and the position of the CEC, viewing such vi- lished the campaign post.
olations in the context of use of administrative
resources was more effective and correct. How- As to the use of administrative resources, near-
ever, as expected, none of the complaints filed ly all individuals used a standard argument – in
were satisfied, with the exception of one case particular, the campaign post was published from
where the person concerned admitted the viola- a personal cellphone or a computer and the data
tion. plan had been purchased by the person con-
cerned and not from the budget of the municipal-
First we must note that in dispute resolution pro- ity. The only exception was the case of Deputy
cess electoral commissions mostly rely on state- Gamgebeli of Nadzaladevi District, who stated
ments provided by individuals that committed that the campaign post in question had been
the violation. Campaigning by social networking shared by his guest who borrowed his phone
sites was blamed on family members and other but he also admitted that the data plan had been
individuals and justified by a range of arguments, purchased from the municipality budget. It was
including: the only case where, based on the admission
of the person concerned, the CEC found that
• The social media account is not owned by campaigning through a social networking site
the individual and s/he did not take the actions amounted to a violation due to the use of admin-
concerned; istrative resources and prepared the protocol of
an administrative offence.8
• The campaign video was posted by the
son; These complaints and decisions made by the
electoral administration indicate how wrong or
• The information about a campaign meet- ineffective the approach of the electoral admin-
ing was published by the brother; istration is toward campaigning through personal
social media accounts. The electoral adminis-
• The wife is also using the account and tration does not have any effective means for
she published the campaign post; identifying use of administrative resources when
a civil servant is campaigning using his/her per-
• The wife and the children also have ac- sonal social media account. The decisions made
cess to the social media account and the se- by the electoral administration suggest that the
quential number of the presidential candidate only source of information is a statement of the
was posted by the daughter. The case file also person that engaged in campaigning. With only
includes an affidavit of the daughter stating that a few exceptions, it is less likely that someone
she has access to her father’s social media ac- will willingly admit that s/he was using adminis-
count because she created it and she published trative resources, which is subject to a fine of
the campaign post; GEL 2,000.

• The person concerned left for an official
business and upon return he found that “the
Facebook account was logged into and a video
supporting a political subject had been shared”,
which he immediately deleted. This fact is con-
firmed by the co-worker who also left for an offi-
cial business with him;
It is unjustified for the CEC to view the use of
personal social media accounts by civil servants
during work hours for campaigning as only the
problem of using administrative resources. As
a result, the electoral administration is unable
to find a violation, which NGOs were warning
about.9 This creates suspicions that from the

8 ISFED application and the CEC decision are available at: https://sachivrebi.cec.gov.ge/info.php?id=8287
9 ISFED, GYLA, TI-Georgia

3
very beginning the purpose was to not react ef- campaigning, as he is not a citizen of Georgia,
fectively to complaints and to have the outcome and demanded that the CEC take a legal action
that we have now where violations are justified in response to the violation.11
citing arguments of the very individuals that com-
mitted these violations. The CEC rejected the complaint citing ambig-
uous arguments. The CEC decision reads: “an
Blaming campaigning and use of personal devic- alien does not have the right to participate in
es on other people in order to avoid responsibility campaigning and canvassing but this norm does
clearly indicates the negative trend promoted by not entail prohibition or recognition as an admin-
the CEC as a result of narrow and unreasonable istrative offence of an action, which is the right of
use of legislation. This not only undermines the a member of a presidential candidate, similar to
electoral environment but also results in politici- any citizen/non-citizen of Georgia, protected and
zation of civil service and use of the resource of guaranteed by the Constitution.” It follows from
civil servants for political purposes, which may this reasoning that the prohibition that exists with
be done as a result of pressure or in order to respect to aliens is unconstitutional according to
please the management. Ineffective response of the CEC. In this case, it is peculiar that the CEC
the electoral administration encourages and in- did not state this in any of its previous decisions
creases the extent of problems in this area. and it did not submit to the legislature a proposal
for ensuring protection of rights of aliens guaran-
In view of the fact that with its decisions the elec- teed by the Constitution of Georgia.
toral administration has failed to adequately ad-
dress the problem and offenders have been able The decision further reads: “Georgian presiden-
to escape responsibility, it is expected that by the tial candidate is a public figure and there is a
2020 parliamentary elections such violations will high public interest with respect to his/her family.
become even more far-reaching. On the one hand, it is the right of a voter to re-
ceive information about a presidential candidate
(including about his/her family members) and on
Campaigning by aliens the other hand, it is the right of a presidential
candidate to talk about his/her own family and
present his/her family members to voters during
Under para.4(f) of art.45 of the Election Code of a pre-election campaign.” This argument is en-
Georgia, an alien is prohibited from participat- tirely irrelevant and unsubstantiated. Prohibition
ing in pre-election campaigning and canvassing. of participation of aliens in campaigning, provid-
During the 2017 local self-government elections, ed in the Election Code, does not foresee any
cases of campaigning by aliens were found, to exception for children of presidential candidates
which the CEC’s response was ineffective. Simi- or any other individuals close to them. Campaign
lar to the previous issue, the CEC chose narrow events are up for presidential candidates to de-
interpretation of the norm and narrowed down cide but these events should be kept within the
the definition of prohibition of campaigning by an bounds of the law. Prohibition of participation of
alien to the extent that it became essentially im- a person in campaigning under the law should
possible to enforce the norm in practice.10 be the decisive and binding factor, not the desire
of a particular candidate to present his/her family
The CEC maintained the same position for the members or relatives to public. In an event of
2018 presidential election. ISFED filed a com- campaigning by aliens the CEC, which has tra-
plaint concerning participation of Teimuraz ditionally preferred formalistic use of the Election
Gorjestan, Salome Zourabichvili’s son in election Code without taking into account the purpose

10 “Pre-election disputes: Achilles heel of the electoral administration”, March 2018, International Society for Fair Elections and Democracy, https://bit.ly/2Z3LtK5
11 ISFED application and the CEC decision are available at: https://sachivrebi.cec.gov.ge/info.php?id=8343

4
and the aim of the norm, has completely disre-
garded clear and unambiguous prohibition and
reads it in a way that goes beyond the scope of
the Election Code. Therefore, it is unclear what
the motive of the CEC was and what caused
such different interpretation of the Election Code
and inconsistent approach.
In the same decision, the CEC is citing “The
Rule for arranging protocol events in Georgia”
adopted under the Order no.386 of the President
on 27 September 2001, which envisages par-
ticipation of family members of president-elect
of Georgia in the ceremony of inauguration and
states that participation of family members of the
presidential candidate in a public event is indica-
tive of high public interest. It is unclear what logic
the CEC uses to connect campaign events to
inauguration. Election campaign of a presiden-
tial candidate and inauguration of the president
are two different events with different contents
and purposes, and they should not be viewed as
same and equal.
The most interesting aspect of the decision is
that the CEC refers to three decisions of the
European Court of Human Rights12 in order to
justify its decision not to find a violation in the
case concerned. None of these cases address
participation of an alien in campaigning. Notably,
the CEC has not used ECtHR decisions in any of
the past cases concerning participation of aliens
in campaigning. Also, interestingly the fact that
the CEC is citing these decisions of the ECtHR
suggests that it views the prohibition provided
in para.4(f) of art.45 of the Election Code as a
violation of freedom of expression guaranteed
by the European Convention of Human Rights.
Based on this position, the CEC should think that
the regulation that contradicts the Convention as
well as the Constitution must be abolished, be-
cause it is impossible for the regulation to violate
rights guaranteed by these two important docu-
ments only in the case of Salome Zurabishvili’s
son.
12 Oberschlick v. Austria, (No. 11662/85); Bowman v. The United Kingdom, (141/1996/760/961); Cox v. Turkey (2933/03)
13 ISFED application and Tkibuli DEC decision are available at: https://sachivrebi.cec.gov.ge/info.php?id=7154
5
It is safe to say that the decision in question,
with its arguments and ambiguous references to
the order that regulates protocol events or to the
ECtHR decisions, does not hold water. It seems
that the main purpose of the decision was to let a
particular person avoid responsibility and justify
participation of a particular unauthorized individ-
ual in campaigning using any argument.
Attending campaign events during
work hours
Under para.4(h) of art.45 of the Election Code,
civil servants are prohibited from campaigning
and participation in campaigning during work
hours.
A campaign meeting held by the presidential
candidate, Salome Zourabichvili in Tkibuli Cul-
ture House was attended by the Deputy May-
or and Assistant of Sakrebulo Chair of Tkibuli
during work hours.
Complaint filed by ISFED concerning the vio-
lation was not satisfied by Tkibuli DEC on the
following grounds: “election campaigning cannot
manifest in inactivity. Attending a meeting with
voters does not entail participation in pre-elec-
tion campaigning, unless it is accompanied by
calls or any other public action.”13 According to
the decision, because civil servants were attend-
ing the meeting during work hours, Tkibuli DEC
referred the case to their employers for further
actions.
Tkibuli DEC made the decision by ignoring the
important principles that the Election Code aims
to protect by prohibiting participation of civil ser-
vants in campaigning during work hours, in par-
ticular, the principle of impartiality and neutrality
of civil service. The DEC avoided fulfillment of
its obligation to create fair electoral environment
and enforce the law and imposed this entire re-
sponsibility on the employer. Such approach of
the DEC confirms yet again the necessity of leg-
islative changes prepared by NGOs for defining
the notion of campaigning more precisely, in or-
der to avoid disregarding of the existing regula-
tion.14
Use of administrative resources
Art.48 of the Election Code prohibits use of ad-
ministrative resources during a pre-election cam-
paign period, in favor of or against a political
party or an electoral subject.
During the pre-election campaign period, Tbili-
si Mayor laid a wreath on the memorial of he-
roes that died fighting for the territorial integrity
of Georgia. The information and photos from the
ceremony, also attended by presidential candi-
date Salome Zourabichvili, were published on
the official Facebook page and official website of
Tbilisi City Hall.15
pretation provides a broad opportunity for use of
administrative resources, which is unjustified.
Additionally, it is unclear why the CEC found
that participation in the event in question did not
amount to manifestation of support for an elector-
al subject and assistance for election purposes.
It is also unclear how the CEC concluded that
information reported by the social media account
and website funded from the local self-govern-
ment budget, which in addition to the information
about participation of Tbilisi Mayor in the event
also contained information about the presidential
candidate, amounted to coverage of the Mayor’s
activities.
With this decision, the CEC not only avoided im-
position of a fine on Tbilisi City Hall for clear
violation but similar to a number of other cases,
it undermined the standard established by the
Election Code and created an opportunity of us-
ing administrative resources for election purpos-
es bypassing the legislation.

In the case in question, the CEC didn’t find use of

administrative resources based on the following Inciting national strife or providing
argument: “The event was held to commemorate information?
the fall of Sokhumi [and it was] based on the
concrete goal to honor the dead. Therefore, this
event cannot be viewed as part of a pre-election Article 45.3 of the Election Code of Georgia pro-
campaign. Additionally, there was no appeal to hibits calling for national strife and enmity. On 2
voters in favor of or against an electoral subject/
November 2018, during a campaign meeting with
candidate, or any other public action facilitating
ethnic Armenians presidential candidate Salome
or impeding its election.” According to the deci-Zourabichvili made the following statement: “until
sion, “the information was published in order to now, citizenship was granted only under the de-
report on activities of Tbilisi City Hall, a public
cision of the president. One president, whom my
entity, and not for campaigning purposes.” opponent represents, gave citizenship to a lot
of Turks but not to you.” Because of sensitivity
The fact that the reasoning of the CEC is flawed of the issue, ISFED applied to the CEC with a
is indicated at the very least by the argument request to investigate the fact and take further
that use of administrative resources was not actions, however the CEC did not find any vio-
found because the event was not part of the lation.16
pre-election campaign. This means that use of
administrative resources can take place only if The decision of the CEC reads:“The statement
the event has been planned for the campaign concerned legal regulation of dual citizenship. In
purposes from the very beginning. Such inter- this regard, former president was criticized and

14 Recommendations for improving the electoral environment, ISFED, GYLA, TI-Georgia, p.5, 12 June 2018; https://isfed.ge/eng/rekomendatsiebi/rekomendatsiebi-saarchev-
no-garemos-gaumjobesebisatvis
15 ISFED application and the CEC decision are available at: https://sachivrebi.cec.gov.ge/info.php?id=7155
16 ISFED application and the CEC decision are available at: https://sachivrebi.cec.gov.ge/info.php?id=7280

6
factual circumstances of the process of grant-
ing citizenship by him was described, which can
be viewed as informing voters about a concrete
activity, event and actions taken by the Head of
State in the past, which may not be considered
as an appeal for national strife and enmity.”
constitutional principle of separation of the state
and the church and the goal of the prohibition
prescribed by the Election Code.
How does the electoral administration react to
this issue?

Consequently, the CEC found that the statement During the pre-election campaign, Chkondi-
of the presidential candidate was “a description di Bishop Petre, who is a member of the Holy
of concrete actions of a former president”, while Synod of the Georgian Apostolic Autocephalous
the focus of the statement is clear with one read, Orthodox Church, made a political statement
even without knowing introduction or continu- amounting to campaigning against presidential
ation of the statement. Even with a superficial candidate Salome Zourabichvili. ISFED referred
knowledge of historic relationship between the the fact to the CEC for investigation.17
two nations one can realize how negative and
harmful such statements can be. The fact that According to the Constitutional Agreement be-
the statement was not just delivering plain facts tween State of Georgia and Georgian Apostolic
is confirmed by a simple test – in particular, why Autocephaly Orthodox Church, the following can
weren’t examples of other countries provided for represent the Church without any special autho-
information? Making a comparison with Turkish rization: the Church Council, Catholicos Patri-
nationals during a meeting with Armenian com- arch of All Georgia, Holy Synod and Georgian
munity makes it clear that such statement was Patriarchate (represented by Senior Archbishop
not accidental. It is unclear why the CEC found and the Secretary).18
that the statement was merely providing informa-
tion about activities of a former president. This In its decision the CEC stated that a religious
naturally leads to an opinion that the purpose organization and in the case in question, the Or-
was to let the presidential candidate escape re- thodox Church and not an individual clergyman
sponsibility and justify her statement. is prohibited from campaigning. The CEC also
explained that even though Chkondidi Bishop is
a member of the Holy Synod, he does not rep-
Campaigning by a clergyman resent the Church without any special authoriza-
tion. The Synod, i.e. the Council of Bishops and
not individual members of the Synod represents
Under para.4(g) of art.4 of the Election Code of the Church without any special authorization. The
Georgia, religious organizations are prohibited CEC found that Chkondidi Bishop expressed his
from participating in campaigning. This norm is personal opinion about statements of the candi-
based on the principle of secularism and aims date and his address to the parishioners does
to draw a line between the state and religious not represent a statement made in the name of
activities. In Georgian reality, often clergymen the Church and it cannot be deemed as a viola-
and in particular, representatives of the Orthodox tion.
Church get actively involved in campaigning in
favor of or against a candidate/party. In consider- Notably, ISFED has previously filed applications
ation of the high level of public trust towards the with the CEC in connection to political statements
church, it is safe to assume that through such made by the Archbishop of Catholicos-Patriarch
campaigning clergymen have significant effect of Georgia during the pre-election period ahead
on outcomes of the election, which violates the of the 2014 local self-government elections but

17 ISFED application and the CEC decision are available at: https://sachivrebi.cec.gov.ge/info.php?id=7059
18 The Constitutional Agreement between the State of Georgia and Georgian Apostolic Autocephaly Orthodox Church, art. 1, p.4, 22 October 2002, available at: https://
matsne.gov.ge/ka/document/view/41626?publication=0

7
the CEC didn’t find any violation citing the same protocol in writing.
motive, that the Church as a religious organiza-
tion and not an individual clergyman is prohibited ISFED filed a complaint with the CEC concerning
from participating in campaigning.19 responsibility of commission members that did
not sign DEC summary protocols.
The fact that according to the CEC, the prohi-
bition prescribed by the Election Code does not The complaint was filed within the prescribed
apply to a member of the Synod, who is a senior timeframe but by the time it was considered, the
official in the hierarchy of the Church, is not only authority of DEC members appointed by political
a narrow interpretation of the existing regulation parties had already been terminated. The CEC
but also a direct permission for clergymen and used this fact as an argument not to satisfy the
other religious organization members to engage complaint. The standard established by the CEC
in campaigning without any limitations. as a result of this decision can serve as yet an-
other ground for commission members to escape
Statements made during a sermon delivered responsibility.
by a clergyman and especially by a senior one,
available through media, clearly amounts to a Resolving the issue this way is incorrect and it
public activity. It should be clear that in consider- promotes poor practice. Termination of power
ation of their authority, political statements made may not be grounds for releasing a commission
by clergymen may have a significant influence member from liability. Instead, the time when the
on voters. Further, one should not question the violation was committed should be the factor, not
fact that in the eyes of voters clergymen are rep- the time when the complaint was handled. As au-
resentatives of the Church. thority of some PEC and DEC members expires
soon, it is possible for commission members that
Consequently, based on the existing reality, the committed the violation to escape liability only
regulation prescribed by the law and its purpos- because by the time the CEC or the DEC con-
es, CEC’s approach that the legal prohibition sidered the complaint, their authority had already
does not apply to senior officials in the church hi- been terminated. It is also possible that in some
erarchy like a member of the Synod or Archbish- cases, when there is such interest, adjudication
op is superficial and unsubstantiated. Such inter- of complaint will be delayed in order to release a
pretation has a detrimental effect on the electoral particular person from responsibility.
environment and creates an impression that its
purpose is to avoid imposition of responsibility.
Electoral dispute resolution
process – open or close?
Termination of authority of
commission members as grounds
for not satisfying complaints According to the guidelines for resolving elec-
toral disputes prepared by the CEC in coopera-
tion with NGOs a complaint/application seeking
Under para.4 of art.71 of the Election Code, all drawing up of a protocol of administrative offenc-
members of the commission must sign the sum- es should be handled unilaterally, with oral hear-
mary protocol of the election. Under para.5 of ing by the person authorized to prepare such
the same article, if a member of the commission protocol, with participation of stakeholders, and
does not agree with the summary protocol, s/ a subsequent protocol of oral hearing should be
he can enclose his/her dissenting opinion to the prepared.20

19 Final report of monitoring the 2014 local self-government elections, ISFED, p.20, 2014, available at: https://bit.ly/2xBgbLg
20 Guidelines for electoral disputes: p.28, 2018, http://cesko.ge/res/docs/Book-Davebi2018-Web.pdf

8
Even though according to the guidance adopted Against the background of such practice, impar-
by the CEC itself, a complaint/application should tiality and objectivity of the electoral administra-
be adjudicated with an oral hearing, the practice tion is naturally called into question. Analysis of
of the electoral administration is inconsistent. In the established practice suggests that during ad-
most cases, commissions do not summon the judication of disputes the electoral administration
individual that has submitted a particular com- cares about letting concrete individuals escape
plaint/application, in order to attend the hearing. responsibility, instead of protecting voter inter-
ISFED representatives were summoned only in ests and creating equal electoral environment.
a few cases. Such approach is unacceptable. It This indicates lack of integrity of the electoral
is also ambiguous based on what does the elec- administration and renders prevention and elimi-
toral administration decide when to summon the nation of violations ineffective.
person that has submitted a complaint/applica-
tion to attend the hearing and when not. Based on the existing reality, with respect to
electoral dispute resolution it is safe to say that
the electoral administration is unable to meet its
Conclusion obligations, which has a negative effect on the
electoral environment and encourages violations.
Ineffective response of the electoral administra-
tion to electoral disputes remains a problem and
This brief summary of procedural aspects of the
the negative trend found in the previous elec-
complaints process and decisions made about
tions has not changed.
complaints clearly illustrates that the practice of
reacting to electoral violations by the electoral
To address the problem:
administration is a serious problem. With its de-
cisions, the electoral administration established
• The electoral administration should
a very low standard about issues that are vi-
demonstrate the will to respond to violations
tal during the election campaign period, which
effectively, which would ensure enforcement of
contradicts not only the goals of the electoral
regulations prescribed by the law;
legislation but also renders existence of some
regulations pointless and undermines fair and
• When applying a norm, the electoral ad-
competitive environment for a pre-election cam-
ministration should take into account its goal and
paign in general.
interest to create fair and equal electoral environ-
ment;
Notably, in most cases that concern the fore-
going issues, the problem is not the legislation
• The electoral administration should under-
but the incorrect application and interpretation
stand and analyze contemporary challenges re-
of the legislation by the electoral administration.
lated to elections (e.g. use of social media) and
Arguments provided in decisions of the elector-
interpret the legislation accordingly;
al administration and its inconsistent approach,
when the electoral administration provides nar-
• Prior to submitting proposal on changes
row, word-by-word interpretation of the law or a
in the Election Code to the legislature, the CEC
broad interpretation that runs completely against
should hold consultations with impartial and in-
the goal of the clear regulation provided in the
dependent NGOs for discussing the practice of
law, give an impression that such approach of
electoral dispute resolution and existing chal-
the electoral administration is intentional and it is
lenges;
not the result of ignorance about the legislation
or failure to understand it.

9
• In the very documents that it adopted, e.g.
the memorandum on use of administrative re-
sources, the CEC should incorporate interpreta-
tions that will ensure effective response to actual
challenges;

• The electoral administration should ensure

consistency in handling of complaints in practice
and oral hearing of cases involving administra-
tive offence.

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