Election Investigations Guidebook
Grosaru v. Romania294 illustrates the fact that certain violations may overlap; an action can be both an electoral violation under electoral laws and/or
regulations as well as a crime under the country’s penal code. For example,
an incident of violence committed with the purpose of intimidating a person
to vote a certain way may be both an offense of intimidation under electoral
laws and a crime of assault under the penal code. In such cases, the act may
be sanctioned under both the electoral laws and the penal code. The level
of evidence necessary for a criminal conviction can make a criminal prosecution more time-consuming, and convicting a person of a crime requires a
higher evidentiary standard (generally “beyond a reasonable doubt”) than
sanctioning a person for an electoral offense. Conversely, there are factors
that make criminal prosecution more effective: greater resources for investigation; greater penalties; the power of arrest; and the wide powers of search
and seizure to obtain evidence.
In general, whether an electoral complaint alleges an administrative, civil,
or criminal complaint indicates the proper jurisdiction for the investigations
process. States often provide for exclusive jurisdiction to one institution,
depending on the type of claim, in order to prevent any confusion on agency authority. In the United Kingdom, for example, police forces have the
authority to investigate allegations of election fraud, corrupt practices, and
other electoral law offenses .295 When receiving a complaint or identifying
a potential issue, the British Electoral Commission refers the matter to the
police force’s Single Point of Contact (SPOC) Officer for elections. In addition,
citizens, candidates, political parties, and the media can file claims directly
with the police SPOC. Other states, however, establish rules for investigations
related to specific phases of the election process rather than the claim type.
In several states, election management bodies have exclusive jurisdiction,
at least for preliminary investigations, over all election offenses and disputes.
In the Philippines, for instance, the Commission on Elections has the exclusive power to conduct investigations, acting on a verified complaint or its
own initiative, for all election offenses punishable under election laws and
294 Grosaru v. Rom., App. No. 78039/01, 2010-II Eur. Ct. H.R. 1 (2010). See also, Kudła v. Pol., No. 30210/96, 2000-XI Eur. Ct.
H.R. § 158 (2000).
295
94
See Electoral Comm’n, Guidance on Preventing and Detecting Electoral Malpractice (2013) (U.K.).