Summary
Effective redress requires disputes to be dealt with in a timely manner.
Obligations
Election Parts
Issues
- The Right to an Effective Remedy, Including Challenging Election Results
- Right to an Effective Remedy for Candidates and Parties
- Right to an Effective Remedy for Electoral Management Body Actions
- Right to an Effective Remedy and the Media
- Right to an Effective Remedy and Vote Counting and Tabulation
- Right to an Effective Remedy and Voter Education
- Right to an Effective Remedy and Voter Registration
- Right to an Effective Remedy and Voting Operations
Criteria
- An effective and timely remedy was available for all citizens for violations of their rights throughout the electoral process
- There was a timely and effective means of seeking redress for violations of rights regarding candidacy and campaigning
- An effective (timely and enforceable) remedy was available for all violations of their fundamental rights
- The legal framework provided citizens with an effective (timely and enforceable) remedy throughout the electoral process
- A system to file complaints related to the media was available for all citizens
- The right to remedy was protected throughout the process
- There was a timely and effective means of seeking redress for violations of rights, including regarding voter education
- There was a clear timeline for complaints regarding voter registration that ensured that complaints were resolved prior to election day and in time for the election
- The state provided an effective (timely and enforceable) remedy to all citizens for violations of their rights, including in the context of voting operations
Quotes
- State Parties re-affirm their commitment to regularly holding transparent, free and fair elections in accordance with the Union’s Declaration on the Principles Governing Democratic Elections in Africa. To this end, State Parties shall: 2. Establish and strengthen national mechanisms that redress election related disputes in a timely manner.
- Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, law, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.
- Every woman has the right to the recognition, enjoyment, exercise and protection of all human rights and freedoms embodied in regional and international human rights instruments. These rights include, among others: ...g. The right to simple and prompt recourse to a competent court for protection against acts that violate her rights.
- The Court reiterates that considerations of expediency and the necessity for tight time-limits designed to avoid delaying the electoral process, although often justified, may nevertheless not serve as a pretext to undermine the effectiveness of electoral procedures (see, mutatis mutandis, Namat Aliyev v. Azerbaijan, no. 18705/06, § 90, 8 April 2010) or to deprive the persons concerned by those procedures of the opportunity to effectively contest any accusations of electoral misconduct made against them (see Orujov, cited above, § 56).
- Moreover, particular rules or sets of rules should be instituted in order to expedite the settlement of disputes: a. in urgent cases b. in cases relating to an undisputed right or an established liquidated claim and in cases involving small claims.
- The law must require that the appropriate election commission/body or court render a prompt decision.
- Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance).
- The integrity of the system requires not only that such issues be dealt with by an independent and impartial authority, such as the electoral commissions or the courts, but also that decisions be reached in a timely manner, in order that the outcome of elections not be delayed.
- Time-limits for lodging and deciding appeals must be short.
- There must be time limits for resolving election petitions.
- Complaint and appeals procedures must be open at least to each voter, candidate, and party. A reasonable quorum may, however, be imposed for appeals by voters on the results of election (CDL-AD(2002)023rev, para. 99). In order to comply with international standards, the complaint and appeals procedures should clearly provide the following rights for voters, candidates, and political parties: The rights to file a complaint, to present evidence in support of the complaint, to a public and fair hearing on the complaint, to an impartial and transparent proceedings on the complaint, to an effective and speedy remedy, as well as to appeal an appellate court if a remedy is denied (see for example CDLAD(2004)027, para. 111). In practice, however, these rights are not always respected. At times, even credible complaints are left without any legal redress.
- The law must require that the appropriate election-administration body or court consider, determine and render a prompt decision on a complaint. A principle common to many legal systems is that “justice delayed is justice denied”.
- In order for the remedy of a violation to be effective, it must be provided in a timely and appropriate manner. This is particularly important in the electoral context due to the time-sensitive nature of the fast-paced process.
- Electoral disputes should be subject to prompt review. While there is no set standard for time limits, good electoral practice recommends three to five days, although longer deadlines may be allowed for the highest courts. Likewise, in challenges against election results, it is advisable that the final resolution of all complaints and appeals take place within two months, maximum.
- Due to the unique nature of election complaints, investigators must make their decisions in a timely fashion and in accordance with the rules, policies, and procedures that govern the electoral process.
- The principle of prompt investigation is important because election processes and results are time-bound, evidence may be time-sensitive or subject to destruction following an election, and impunity for electoral offenses may linger from one electoral cycle to the next if not dealt with in a timely manner.
- Given that there are legally specified periods for each electoral phase, decisions must be both timely and definitive. This implies that conflicts must be resolved before the conclusion of each respective phase of the electoral contest (e.g., any questions arising around the validity of an electoral candidate must be resolved conclusively before the electoral registration period has been completed).
- Electoral judicial proceedings should be timely, that is, a decision should be reached promptly and expeditiously within the legally established periods or stages of the electoral process. A decision taken outside this time frame may be unfair, and would make it impossible to correct the damage done to some electoral rights.
- Reasonable deadlines should be provided for bringing challenges (generally shorter than those for civil litigation and other branches of administrative law). These need to balance the time required by the person alleging harm by a particular electoral act or decision to take stock of its content and scope and to gather the evidence, on the one hand, against the need to obtain a timely resolution, given that electoral processes proceed in stages that cannot be changed or interrupted.
- Those seeking to exercise the right to freedom of peaceful assembly should have recourse to a prompt and effective remedy against decisions disproportionately, arbitrarily or illegally restricting or prohibiting assemblies.
- In accordance with the procedural time limits prescribed by law for publication of the preliminary and final results and for filing and deciding upon related challenges, all complaints and appeals should be determined once and for all within a maximum of two months.
- Participants in assemblies must have clear and effective avenues to bring legal action against authorities where their right to freedom of peaceful assembly is infringed, including in cases involving the illegitimate banning or imposing of restrictions on assemblies; violence or retaliations against assembly participants, their family members, journalists or observers; mass surveillance; harassment; and public defamation and smear campaigns.
- Another important element of the legislative framework is the complaints and appeals process, which must provide effective and timely remedies in the event of violations of law. Complaints concerning the election process must be dealt with equitably, transparently, and according to due process of law. Procedures and deadlines should be clearly set out in the election law. Time frames must be sufficiently short to ensure a meaningful remedy. There must be accessible and adequate facilities for filing complaints.
- In accordance with the procedural time limits prescribed by law for publication of the preliminary and final results and for filing and deciding upon related challenges, all complaints and appeals should be determined once and for all within a maximum of two months.
- The law must require that the appropriate EMB or court render a prompt decision to avoid the aggrieved party losing his/her electoral rights…The decision of the court of last resort must be issued promptly. The legal framework should provided for timely deadlines for the consideration and determination of a complaint and the communication of the decision to the complainant.
- Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.