CDL-AD(2020)025
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election. Pursuant to provisional legal provisions, five members out of the fifteen-member
boards of the electoral commissions at every level, as well as their chairmen, were either
directly or indirectly appointed by the President of Georgia. In addition, at least one member
of those electoral commissions was a representative of the President’s National Movement
party, since the latter had won the earlier local elections in Tbilisi. Pro-presidential forces thus
had a relative majority vis-à-vis the representatives of other political parties in electoral
commissions at every level.
The Court noted that, although there could be no ideal or uniform system to guarantee checks
and balances between the different State powers within a body of electoral administration, a
proportion of seven members out of fifteen-member electoral commissions, including the
chairmen who had the casting votes and were appointed by the President of Georgia and his
party, was particularly high in comparison to other legal orders in Europe.
Furthermore, the Court observed that so long as the presidential party – the National
Movement – was simultaneously running in the repeat parliamentary election, it was not
implausible that other candidate parties, including the applicant party, might have been placed
in an unfavourable position by the presidential majority in the electoral administration. The
Government’s argument that, once appointed to office, the members of the electoral
commissions had to quit their respective political parties or to suspend their membership, was
not found reassuring in this regard. The Court was not convinced that a party’s representative
to an electoral commission, whom that party has most likely nominated because of his or her
loyalty to its values and discipline, would necessarily and immediately become an independent
and impartially thinking civil servant just by virtue of filing a formal declaration to that end.
The Court noted, however, that the applicant party did not submit any evidence that the
presidential majority in the electoral commissions had misappropriated the votes cast in its
favour or otherwise limited its rights and legitimate interests during the repeat parliamentary
election. The Court held that it could not find a violation of Article 3 of Protocol No. 1 solely on
the basis of the allegation, no matter how plausible it was, that the system had created
possibilities for electoral fraud; instead, the applicant party should have submitted evidence of
specific incidents of alleged violations.
The Court concluded that the contested composition of electoral commissions at all levels
indeed had lacked sufficient checks and balances against the President’s power and that
those commissions could hardly enjoy independence from the outside political pressure.
However, in the absence of any proof of particular acts of abuse of power or electoral fraud
committed within the electoral commissions to the applicant party’s detriment, no breach of
the latter’s right to stand for election was established.
(f) Sufficient reasoning of decisions and indication of a genuine effort to address the substance
of arguable claims
The authorities must make genuine effort to address the substance of arguable individual
complaints concerning electoral irregularities and the relevant decisions must be sufficiently
reasoned.200
Specific case:
In the case of Namat Aliyev (cited above) the applicant complained that, in the electoral
constituency where he stood as a candidate, there had been a number of serious irregularities
which had made it impossible to determine the true opinion of voters and thus had infringed
200
See Namat Aliyev, cited above, §§ 76-93.