may become meaningless in the protection of rights, as decisions will effectively have no force to
change or deter certain kinds of behavior that threaten the rights of others, or to right a wrong
that has already occurred.
The purpose of legal remedies in the elections context is to protect the integrity of the
process and to ensure that electoral rights (to vote and stand for office) are respected. No
election is perfect, but sometimes irregularities can escalate until they violate fundamental rights,
and/or threaten the credibility and legitimacy of the election or the election results. Ideally,
appropriate preventative measures should be established prior to an election to mitigate this
threat, but equally important are effective and timely remedial measures to address allegations
of fraud or malpractice when they do occur.
There are many different ways to design an effective and efficient system for addressing
electoral complaints and providing effective remedies, and these have been outlined elsewhere
in the literature.7 It is important that any system adhere to international standards that stem
from the fundamental right to participate in government found in the UDHR and the ICCPR.8
Signatories to the ICCPR are committed to ensuring that any person whose right to vote and be
elected has been violated will have an effective remedy.9 For a complaints adjudication process
to be effective, the judge or adjudicator must be able to grant the complaining party a
meaningful remedy that, in addition to righting the wrong at hand, helps to deter future
malpractice and fraud.10 , Additionally, there should be predetermined rules in place governing
the application of this remedy.11
The role of the judiciary to ensure that the legal provisions protecting fundamental rights
are interpreted in such a way as to make them effective has been acknowledged by the European
Court of Human Rights (ECtHR). In Namat Alieyev v. Azerbaijan, the ECtHR held that the “object
and purpose” of the European Convention for the Protection of Human Rights and Fundamental
Freedoms “requires its provisions to be interpreted and applied in such a way as to make their
stipulations not theoretical or illusory but practical and effective [emphasis added].”12
American Convention on Human Rights, The African Charter on Human and Peoples' Rights, The Arab Charter on
Human Rights, and the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
7 See, e.g., GUIDELINES FOR UNDERSTANDING, ADJUDICATING, AND RESOLVING DISPUTES IN ELECTIONS [GUARDE] [hereinafter GUIDELINES
FOR UNDERSTANDING] (Chad Vickery ed., 2011),
http://www.ifes.org/Content/Publications/Books/2011/Guidelines-to-Understanding-Adjudicating-and-ResolvingDisputes-in-Elections.aspx.; JESÚS OROZCO-HENRIQUEZ, ELECTORAL JUSTICE: THE INTERNATIONAL IDEA HANDBOOK (2010). . Models
include administrative and judicial bodies operating under special procedures; shared jurisdiction between ordinary
courts and election commissions; permanent electoral courts; legislative bodies; international and ad hoc bodies.
8 ICCPR, supra note 5, at art. 25.
9 Id. at art. 2(3).
10 GUIDELINES FOR UNDERSTANDING, supra note 7, http://www.ifes.org/Content/Publications/Books/2011/Guidelines-toUnderstanding-Adjudicating-and-Resolving-Disputes-in-Elections.aspx. According to GUARDE, effective systems will
provide: a transparent right of redress; clearly defined election standards and procedures; an impartial and informed
arbiter; appropriately expedited decisions; established burdens of proof and standards of evidence; meaningful and
effective remedies; and effective education and training for stakeholders
11 Id.
12 Namat Aliyev v. Azerbaijan, App. No. 18705/06, Eur. Ct. H.R. ¶ 72 (2010). . (See, United Communist Party of Turk. and
Ors v. Turk., No. 19392/92, 1998-I Eur. Ct. H.R. § 33 (1998),
http://www.associationline.org/guidebook/action/read/chapter/10/section/jurisprudence/decision/290; Chassagnou
and Others v. Fr., Nos. 25088/94, 28331/95, & 28443/95, 1999-III Eur. Ct. H.R. § 100 (1999); and Lykourezos v. Greece,
No. 33554/03, 2006-VIII Eur. Ct. H.R. § 56 (2006).