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others for a partial one.192 It should be noted that one option (a general invalidation for
instance) does not necessarily exclude the other option offered to the judge (a partial
invalidation). There are many cases where the competent authority can cancel results in one
or more electoral constituencies.193 In other cases, there are provisions that allow for the
general invalidation of the elections.194
131. On this sensitive issue of (cancellation of) election results, the role of the electoral judges
is crucial, since they are the institution responsible for ultimately deciding on the sincerity of
an electoral process. The electoral judge is tasked with an appreciation of the circumstances
in which electoral malpractice is taking place and how it may affect the outcome of the
elections. Based on such circumstances, the judge has therefore either to confirm or to
invalidate the elections, partially or fully. In this context, the role of the electoral judge may
differ from that of a “judge of the legality”, who should immediately and unequivocally sanction
any shortcoming and/or illegal action. In this regard, circumstances and impact matter as much
as the infringement of legal proceedings.
132. In summary, the legislation of most member States of the Venice Commission does not
provide for detailed legislation on the decision-making power of the appeal body and leaves a
broad decision-making power to courts, in particular regarding the sensitive issue of
cancellation of elections. There remains room for improvement in a number of countries where
the law does not provide necessarily for the possibility to cancel an entire electoral process, a
decision which can be necessary in situations of distortion of election results. This also implies
the possibility to modify election results, to order a total or partial recount of the votes. There
may be consequently a need to clarify the legislation accordingly concerning the cases of
partial or full cancellation of election results and the consequences deriving from such
decisions of cancellation. Among the possible consequences, there can be a recount, a repeat
voting either with the same candidates or fully reorganised including with a new candidate
registration procedure.
X.
Conclusions
133. The proper settlement of electoral disputes is an essential part of a successful electoral
process. This implies ensuring an effective system of challenging electoral violations and
examination of election-related disputes, combining an effective mechanism of lodging
complaints and an effective decision-making process on such electoral complaints. However,
while the legislation of all the Venice Commission’s member States includes legal provisions
on complaints and appeals’ procedures, most of the domestic laws and their implementation
regarding various aspects of election dispute resolution systems could be improved, as
regularly underlined by opinions on electoral legislation as well as by election observation
reports.
134. According to most electoral laws, courts are competent to decide on electoral disputes,
at least in last instance, in line with international standards. The Venice Commission reiterates
its recommendation that electoral legislation provide for judicial bodies to be the final authority
to decide on electoral disputes while avoiding at the same time risks of conflicts of jurisdictions.
192
Albania, Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, Brazil, Chile, Croatia, Czech Republic, Estonia,
France, Georgia, Germany, Hungary, Ireland, Kazakhstan, Republic of Korea, Kosovo, Kyrgyzstan, Latvia, Mexico,
Republic of Moldova, Montenegro, Monaco, Morocco, the Netherlands, North Macedonia, Peru, Portugal,
Romania, Russian Federation, Serbia, Slovenia, Spain, Tunisia, United Kingdom, United States of America.
193 Albania, Armenia, Austria, Bosnia and Herzegovina, Denmark, Estonia, Finland, Georgia, Kazakhstan, Republic
of Republic of Korea, Lithuania, Malta, Mexico, Republic of Moldova, North Macedonia, Norway, Portugal, Slovenia,
Spain.
194 Croatia, Estonia, Finland, Ireland, Malta, Mexico, Monaco, Morocco, Poland, Russian Federation, Serbia,
Slovak Republic.