Stages of the Investigation Process
award a more time-bound electoral remedy for the administrative aspect of
the violation. In addition, a violation may also potentially be outcome-determinative, which adds further complexity. In some countries, disputes about results that involve the impact of alleged criminal conduct on election outcomes
have resulted in highly controversial dismissals on jurisdictional grounds,
especially where election courts lack criminal jurisdiction. In Guinea, for
instance, the courts dismissed complaints with prima facie impact on election
outcomes because appellants alleged criminal conduct that was outside the jurisdiction of the respective courts.24 Ideally, EDR frameworks should expressly
require that adjudicators take jurisdiction of (and investigate) allegations of
any outcome-determinative conduct—regardless of whether it is criminal or
not. This does not mean that civil and criminal jurisdiction should be merged
but that any court that has authority to hear election petitions should also
have the ability to consider whether certain alleged conduct impacted on
the outcome of an election (without first requiring a criminal conviction and
without precluding subsequent criminal prosecution).
If the investigative body decides to begin an investigation, the Uniform
Guidelines for Investigation stipulate that a complaint must then be evaluated
“to determine its credibility, materiality, and verifiability” and, ultimately,
to decide whether there is a legitimate basis for a full investigation.25 Due
to the unique nature of election complaints, investigators must make their
decisions in a timely fashion and in accordance with the rules, policies, and
procedures that govern the electoral process.26 For instance, Bhutanese rules
and regulations lay out the criteria for a well-pleaded complaint,27 stipulating
that an election complaint shall only be accepted if a prima facie case can be
established in line with the election law.28 As such, the “main objective” of a
review is “to filter those complaints with no basis or substance.”29
International human rights tribunals, such as the European Court of Human
Rights, often use the “preliminary assessment method” to filter cases. Protocol
24
See EUEOM, Final Report: Guinea 8 (2013), http://www.eods.eu/library/FR%20GUINEA%2020.01.2014_fr.pdf.
25
Conference of International Investigators, Uniform Guidelines for Investigations ¶ 30 (2009), http://www.un.org/Depts/oios/investigation_manual/ugi.pdf [hereinafter Uniform Guidelines 2009].
26
GUARDE, supra note 1, at 50–57.
27
Election Comm’n of Bhutan, Election Dispute Settlement Manual ¶¶ 2.2–2.3 (2013), https://www.ecb.bt/wp-content/
uploads/2013/04/ElectionDisputeSettlementManual2013.pdf [hereinafter Bhutan Election Dispute Settlement Manual].
28
Election Comm’n of Bhutan, Election Dispute Settlement Rules and Regulations ¶ 10.1.1 (2013), https://www.ecb.bt/
Rules/Disputeeng.pdf [hereinafter Bhutan Election Dispute Settlement Rules and Regulations].
29
Id. ¶ 10.
29