a. an electoral challenge before a competent electoral dispute resolution
body (EDRB) asking it to grant a remedy consisting of the annulment
of the election or the modification of the result to find a different
candidate to be the winner. This must be presented in accordance with
the procedure laid down in the electoral or procedural law through
a claim, complaint or petition as a trial or an appeal, the different
characteristics of which are analysed in section 1 of chapter 7; and/or
b. a complaint before the competent authority, which may be an authority
in charge of criminal investigation or, in some EJSs, the electoral
management body (EMB).
i. If the authority in charge of investigating the possible commission of
crimes concludes that criminal offences may have been committed,
it may prosecute the person liable before a judge in a criminal court,
seeking the imposition of a criminal sanction of either imprisonment
or a fine. It should be noted that in some EJSs, the same electoral
justice body that hears the challenge that may be grounds for
annulment of the election or modification of the outcome also has
jurisdiction to rule on criminal liability.
ii. In some EJSs the EMB may undertake the investigation. If, after an
administrative procedure in the form of a trial or hearing, it is concluded
that a political party or candidate is responsible for an administrative
infraction (a violation or breach of the law which is not a crime), the
EMB may then impose an administrative sanction, for example a
fine, which it is then often possible to appeal against before a court.
However, in certain EJSs the sanction is imposed subsequently by a
civil court, an administrative court of law or even a criminal court, as
is often the case in countries with a common law tradition where no
distinction is made between criminal and administrative liability.
30. It is therefore important to distinguish between:
a. challenges, which offer a remedy (the means of enforcing a right or
redressing a wrong) and have as their purpose to annul, modify or
recognize the irregular act;
b. procedures for determining administrative or criminal liability in the
electoral area, the purpose of which is to sanction the person responsible
for an irregularity which constitutes a criminal offence, gives rise to
criminal liability and is adjudicated by criminal courts; and
c. action to deal with administrative infractions (violations or breaches
of the law that are not crimes), which give rise to an administrative
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2. Electoral justice and other related concepts
29. In this regard, when an electoral conflict or dispute arises (e.g. if it is
alleged that a candidate has won an election as the result of vote-buying), the
electoral justice system generally provides for EDR mechanisms by which the
party affected may file: