Sources

×
Election Part

Electoral Dispute Resolution

The credibility of the electoral process is determined to a large degree by the capacity of the state to effectively resolve electoral disputes. Challenges to election results, or the conduct of elections, should not be considered a weakness of the electoral system but a sign of its resilience. Electoral dispute resolution mechanisms vary greatly country by country, based largely on historical and political context. They can include formal judicial proceedings or more informal alternative dispute resolution procedures. While this section of the database addresses obligations related to electoral dispute resolution processes, it is important to note that dispute resolution and the right to remedy regarding other parts of the electoral process are included in previous sections. Therefore, to get a full picture of the obligations and issues related to dispute resolution it is necessary to cross-reference this section with other parts of the database.

Issues


The Legal Framework and Dispute Resolution

  • Key Obligations:
  • State Must Take Necessary Steps to Give Effect to Rights
  • Rule of Law

Electoral dispute resolution took place in accordance with the principles of the rule of law

  • States should take measures to promote the principles of the rule of law. [?]
  • Laws and procedures must not be arbitrarily applied. [?]
  • Laws must be consistent with international human rights. [?]
  • All are equal before the law, and laws should be equally enforced. [?]
  • States have a duty to protect the fundamental human rights of all within their jurisdiction. [?]

Laws and procedures were not arbitrarily applied

  • Suspension or exclusion of participatory rights is prohibited except on grounds established by law and which are objective and reasonable. [?]
  • Laws and procedures must not be arbitrarily applied. [?]

The law was clear regarding legal standing for electoral disputes

  • The law should clearly state who has standing to file an election dispute. [?]
  • States must ensure that, in regard to human rights violations, individuals, groups of individuals, and non-governmental organizations have standing before judicial bodies. [?]

The state implemented sanctions against those who violated the electoral law

  • Where a violation is found to have occurred states have a duty to punish those guilty of the violation. [?]
  • The state has a duty to punish cases of electoral fraud. [?]
  • Effective implementation of electoral law requires sanctions against the infringement of electoral law. [?]

The Election Calendar and Enjoyment of Rights

  • Key Obligations:
  • State Must Take Necessary Steps to Give Effect to Rights
  • Periodic Elections

The electoral calendar included adequate time to implement all parts of the electoral process, including the electoral dispute resolution processes

  • States must take the steps necessary to give effect to human rights. [?]
  • The scheduling of voting processes must allow adequate time to successfully implement other necessary components of the electoral process. [?]

Freedom from Discrimination and Electoral Dispute Resolution

  • Key Obligations:
  • Freedom from Discrimination and Equality Before the Law

Everyone was treated equally before the law and courts

  • Procedures for the filing and adjudication of disputes must be understandable and easily accessible to all parties. [?]
  • The guarantee to equality before the courts extends to judicial bodies entrusted with any judicial task (including customary and religious courts). [?]
  • Equality before the courts includes equality in arms and equal access to the courts. [?]
  • Fees that de facto prevent access to the courts may violate the obligation of equal access to the courts. [?]

The electoral dispute resolution process did not discriminate on the basis of prohibited grounds

  • The state must perform both its "negative duty" to refrain from discrimination and its "positive duty" to prevent discrimination. [?]
  • All are equal before the law, and laws should be equally enforced. [?]
  • Discrimination must not be practiced based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, sexual orientation, disability, gender identity and expression, migrant, refugee, repatriate, stateless or internally displaced status, genetic trait, mental or physical health condition, including infectious contagious condition and debilitating psychological condition, or other status at any time. [?]

Transparent Dispute Resolution Process

  • Key Obligations:
  • Right to a Fair and Public Hearing
  • Transparency and Access to Information

The state proactively put in the public domain government information of public interest

  • States should proactively put in the public domain government information of public interest. [?]

Complaints processes were transparent, and the opportunity to present evidence in support of a complaint existed

  • Proceedings on complaints and appeals must be transparent. [?]
  • The opportunity should exist to present evidence in support of a complaint. [?]

Parties to the complaints had access to factual information regarding the alleged violations

  • An effective remedy requires access to the factual information concerning the violations. [?]

Potential complainants were informed of the means of filing a complaint and the timeframe of its resolution

  • Complainants should be informed of the means by which to file a complaint and the timeframe for its resolution. [?]

The judgments, findings, and evidence of judicial proceedings, and legal reasoning for judgments, were made public

  • The judgment, findings, and evidence of judicial proceedings and legal reasoning of the judgment must be made public except in cases involving juveniles and/or matrimonial disputes. [?]

Transparency and access to information were respected during the dispute resolution process

  • Access to information may be restricted only in limited cases, including in the interest of preventing crime or disorder. [?]
  • Access to information may be restricted only in limited cases, including in the interest of protecting personal data. [?]
  • Access to information may be restricted only in limited cases, including in the interest of preventing the disclosure of information received in confidence. [?]
  • Access to information may be restricted only in limited cases, including when an expression seeks to destroy other established rights. [?]
  • Access to information may be restricted only in limited cases, including in the interest of public safety. [?]
  • Access to information may be restricted only in limited cases, including in the interest of maintaining the authority and impartiality of the judiciary. [?]
  • Everyone has the right to seek and receive information. [?]
  • Access to information may be restricted only in limited cases, including in the interest of territorial integrity. [?]
  • Access to information may be restricted only in limited cases, including in the interest of protecting the reputation and rights of others. [?]
  • Access to information may be restricted only in limited cases, including in the interest of national security. [?]

Right to a Fair and Public Hearing by an Impartial and Independent Tribunal

  • Key Obligations:
  • Right to a Fair and Public Hearing
  • State Must Take Necessary Steps to Give Effect to Rights

The legal framework provided the right for a fair and public hearing by a competent, impartial, and independent tribunal in the determination of rights

  • The right to appeal is not guaranteed in the determination of a suit at law. [?]
  • Any body that meets the criteria of impartiality and independence can be considered a tribunal. [?]
  • States should protect the independence of the judiciary. [?]
  • A fair trial entails the absence of influence. [?]
  • A situation in which the executive and the judiciary are not clearly distinguishable is incompatible with the notion of an independent and impartial tribunal. [?]
  • Independence of the judiciary requires proper procedures detailing appointment, term limits, security, and remuneration. [?]
  • In the determination of suits at law the independence and impartiality of tribunals is an absolute right. [?]
  • The right to a public hearing must be protected except for specific and objective reasons as determined by law. [?]
  • The obligation for a public hearing does not necessarily apply to appellate proceedings. [?]
  • Everyone is entitled to a fair and public hearing by a competent, impartial, and independent tribunal in determination of his/her rights. [?]
  • The notion of fair trial includes the guarantee of a fair and public hearing. [?]
  • Impartiality requires that judges act without bias, and that the tribunal appears unbiased to the reasonable observer. [?]

The Right to an Effective Remedy, Including Challenging Election Results

  • Key Obligations:
  • State Must Take Necessary Steps to Give Effect to Rights
  • Right to an Effective Remedy
  • Right to a Fair and Public Hearing

Forum shopping was discouraged

  • Appeal channels, when available, should be narrowly constructed to avoid "forum shopping." [?]

A remedy was available for violations of the right to a fair and public hearing

  • A violation of the right to a fair and public hearing requires an effective remedy. [?]

An effective and timely remedy was available for all citizens for violations of their rights throughout the electoral process

  • States must enforce a remedy when granted. [?]
  • Individuals must have the right to a remedy for violation of their participatory rights relating to the election process. [?]
  • At times, an effective remedy may require States Parties to take interim measures. [?]
  • Everyone has the right to an effective remedy by a competent national tribunal for acts that violate his or her rights or freedoms. [?]
  • Remedy should be available for complaints arising throughout the electoral process. [?]
  • Effective redress requires disputes to be dealt with in a timely manner. [?]
  • An effective remedy requires reparation for harm done. [?]

The ability to challenge the results of the election was provided by law and was available to complainants as appropriate

  • The right to challenge election results should be provided for by law. [?]

The state acted to investigate and address violations of rights. It provided appropriate judicial and administrative means for addressing claims of rights violations, including allegations of electoral fraud

  • States Parties are obliged to prevent a recurrence of the violation to the covenant. [?]
  • States have a duty to investigate alleged rights violations. [?]
  • The duty to investigate includes the investigation of acts by private persons and entities. [?]
  • States have a duty to provide appropriate judicial and administrative means for addressing claims of rights violations. [?]
  • Cessation of a violation is an essential element of an effective remedy. [?]

The state took the steps necessary to give effect to rights during the electoral process, including through the dispute resolution process

  • States must take the steps necessary to give effect to human rights. [?]
  • The requirement to take steps to give effect to human rights is unqualified and of immediate effect. [?]
  • Necessary steps to give effect to human rights include education of the population and state officials in human rights. [?]
  • All branches of the government and other public or governmental authorities are responsible for meeting the obligation to give effect to human rights. [?]
  • States are required to give effect to internationally recognized human rights in domestic law. [?]
  • Necessary steps to give effect to human rights include a requirement to prevent, punish, investigate, or redress violations of human rights by non-state actors. [?]

Safety, Security, and Electoral Dispute Resolution

  • Key Obligations:
  • Right to Security of the Person

Electoral stakeholders were free from arbitrary arrest and detention as well as intimidation and coercion

  • Law enforcement should behave in a neutral manner. [?]
  • Everyone has the right to security of the person without arbitrary arrest or detention. [?]

Law enforcement bodies were neutral in their work

  • Law enforcement should behave in a neutral manner. [?]