The French EDRS is a combination of constitutional and administrative
jurisdictions. The administrative jurisdiction is autonomous, belonging to
the Council of State (Conseil d’État), and hearings may proceed during the
preparatory phase of an election. Under the constitutional jurisdiction, certain
decisions of the Council of State may be reviewed and challenges to electoral
results heard. In certain cases connected with the electoral register, challenges
may be brought before a court of original jurisdiction (Tribunal d’instance)
and eventually before the Court of Cassation (Cour de Cassation), both of
which are part of the judicial branch, and whose rulings are final.
181. Examples of EDRSs that combine constitutional and administrative
jurisdictions include Spain, where the final decision on a challenge to an
election is made by the autonomous Constitutional Court, which can be
resorted to after exhausting the possibilities of an administrative remedy
before the Administrative Court, which is part of the judiciary. Another
example is Portugal, where the final decision on a challenge to election results
is directly entrusted to the Constitutional Court (Tribunal Constitucional),
which is part of the judicial branch.
182. A significant number of the Central and East European countries
that have recently undergone democratic transitions have given their
Constitutional Court the last word in the EDRS when it comes to challenges
to election results. These include Bulgaria, Croatia, Moldova, Montenegro,
Romania and Slovenia, as well as Armenia, the Czech Republic, Georgia and
Slovakia for which the corresponding court is part of the judicial branch. In
Indonesia and Niger the final resolution of electoral disputes is also entrusted
to a constitutional court, which in Indonesia is part of the judicial branch.
183. It is also possible to classify under this model the cases of Burkina
Faso, Cambodia, Cameroon, Kazakhstan and Mozambique, which give a
Constitutional Council which is not part of the judiciary the power to make
the final decision on challenges to election results.
iii) Administrative courts
184. A third type of EDRS, which is not widely used, gives jurisdiction over
the final resolution of electoral challenges to an administrative court that can
be either autonomous or part of the judicial branch.
185. Mindful that electoral challenges are generally brought against the
actions, procedures and decisions of the EMB, some countries have vested
jurisdiction over contentious electoral cases in an administrative court, either
making it autonomous in keeping with the French tradition of administrative
justice (entrusting it to the Council of State and even calling it that) or
situating it within the judicial branch.
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