case law as well as data from EMB case management systems that captures
administrative decisions made and resolutions or remedies extended.
2. Is the remedy timely?
One way of assessing the timeliness of remedies is by looking at what is set out in the
legal framework regarding timelines (legal deadlines, the electoral calendar,
constitutional requirements, and international principles), and the level of adherence to
those timelines. This examination could review the actual or average time it takes to
resolve certain types of election complaints, as well as the number of appeals directly
related to a lack of timely remedy. As outlined by Martin Kuijer in “Effective Remedies as
a Fundamental Right,” the experience of the ECtHR has been that repetitive appeals to
the ECtHR “generally reveal a failure to implement effective domestic remedies…if States
fail to provide effective remedies, individuals will systematically be forced to refer to the
Court in Strasbourg complaints that would otherwise . . . have to be addressed in the first
place within the national legal system.”98 Surveys could also be used to assess whether
complainants consider their claim was dealt with in a timely manner.
3. Was the remedy proportional to the violation or irregularity?
Measuring the proportionality of a remedy will require reference to other models, such
as those used in the criminal justice sphere. For example, a significant amount of
literature and scientific research exists on evidence-based practice regarding probation
policies. That is, “supervision policies, procedures, programs, and practices demonstrated
by scientific research to reduce recidivism among individuals under probation, parole or
post-release supervision.”99
Significant research also exists on sentencing for white collar crime, which differs from
other criminal offenses in the relationship between offender and victim: “[u]nlike the
victims of violent crime, victims of white-collar crime rarely suffer from direct physical
harm or the apprehension of such injury. . . .These features of white-collar crime are
important to legal theory because they call attention to the complicated relationship of
these offenses to the harm principle.”100 This body of research may be particularly
applicable to the elections context, as the impact that white-collar crimes such as tax
evasion or fraud may have could be similar to certain types of electoral fraud in
“undermining the trust and integrity essential for the effective functioning of the
economy and polity.”101
4. Is the remedy enforceable?
This question requires a review of whether the state can and does enforce remedies.
Enforceability could be assessed via comparative analysis of factors such as: access to the
98
Martin Kuijer, Escuela Judicial Española & European Judicial Training Network, Effective Remedies as a Fundamental
Right 2 (2014)
http://www.ejtn.eu/Documents/About%20EJTN/Independent%20Seminars/Human%20Rights%20BCN%202829%20April%202014/Outline_Lecture_Effective_Remedies_KUIJER_Martin.pdf.
99 Hon. J. Richard Couzens, Placer County Superior Court (Ret.), “Evidence-Based Practices-Reducing Recidivism to
Increase Public Safety: A Cooperative Effort by Courts and Probation” June, 2011, at 5.
100 Samuel W. Buell, Fraud in Government & Punishment and Public Attitudes, in “WHITE COLLAR” CRIMES 853 & 859 (2014),
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6035&context=faculty_scholarship.
101 Id.