1. International Standards and Best Practices in election dispute resolution KOSOVO How to improve Electoral Justice? Pristina, November 2014 1

2. Hierarchy of Norms Constitution & International Treaties and Conventions -Kosovo Constitution states direct applicability of international instruments (Articles 16 (3) & 19 Constitution): UDHR, ICCPR, ECHR and its Protocols, Convention on Elimination of all forms of racial discrimination and discrimination against women Primary Legislation e.g. Law on General Elections; Criminal Code; Local Elections Law Secondary Legislation: Regulations and Procedures Guidelines, instructions, directives Code of Conduct Jurisprudence of courts should be taken into consideration *Member of Venice Commission since 13 June 2014. 2

3. International Standards  Right to an Effective Remedy: UDHR, art. 8; ICCPR art. 2(3) (“(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.”); Eur. Convention HR, art. 13.  Right to a Fair Hearing: UDHR, art 10 (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations […]”); UN HRC General Comment no. 25 para 11 and 20; Eur. Convention HR, art. 6 (1).  Right of appeal: ICCPR, art. 14 (5)  Equality before the courts: ICCPR, Article 14, § 1: “Equal before the courts and tribunals.”  Independence and impartiality: ICCPR General Comment 31 (“…Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies.” 3

4. International Standards  Proportionality of sanctions: ICCPR Article 4 and General Comment 29, paragraph 4  Genuine Elections: UN HRC General Comment no. 25 para 20  Free Expression of Will: ICCPR art. 25(b); UN HRC General Comment no. 25 para 11  Code of good practices in electoral matters, Venice Commission, 2002, paras. 68, 92: “68. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre- election period to the end of the processing of results. 92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding. 96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so.40 It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.” 4

5. A practitioner’s tool: IFES Guidelines for Understanding Adjudication and Resolution of Disputes in Elections* 1.The Right of Redress 2.A Clearly Defined Regimen of Election Standards and Procedures 3.An Impartial and Informed Arbiter 4.A System that Judicially Expedites Decisions 5.Established Burdens of Proof and Standards of Evidence 6.Availability of Meaningful and Effective Remedies 7.Effective Education of Stakeholders * IFES, A practitioners’ guide to Understanding, Adjudicating, and Resoling Election Disputes (GUARDE), Chad Vickery (May 2011) Other publication on EDR: International IDEA Electoral Justice Handbook (2010) ; OSCE/ODIHR Resolving Election Disputes in the OSCE area (2000). 5

6. Comparative examples Depending on the country, the court system, government agency, independent commission, special tribunal, parliament may be involved in electoral complaints adjudication – there is no standard on the type of body:  Courts: Ireland, Germany, Moldova, Poland, New Zealand, Macedonia (appeal), Bosnia and Herzegovina (appeal); Croatia (appeal), France  Election commissions: Sweden, Austria, Albania (1 st instance), Montenegro (1 st instance), Macedonia (1 st instance), Bosnia and Herzegovina (1 st instance); Croatia (1 st instance), Philippines  Special commissions with quasi judicial authority: Kosovo, Afghanistan  Special Electoral Tribunal/Panel: Mexico, Pakistan (election results)  Legislative body: Jordan, Germany 6

7. Comparative examples 7

8. Kosovo Context 8 Legislation Law on General Election LGE, Code of Criminal Law, ECAP Procedure, court proceedings Actors and bodies ECAP; CEC; Judicial Council; Criminal Court; Court of 1 st instance; Supreme Court Duties Review, investigate, decide on complaints What Types of complaints? Candidate nomination and political party registration; accreditation of observers; voter list; campaign related violation; election results; election crimes; OoC vote. Who can file? Any person, legal or natural When to file? - Request on VL to Court of 1 st instance: within 40 days before the E-day and decide within 5 days of receipt of request. - Complaints to ECAP : 24 hours and decide within 72h (Art. 119 + 105) - Appeals to ECAP from CEC decisions: 24 hours and decide within 72h (Art. 122) - Appeals to Supreme Court: within 24hours and decided within 72 h (Art. 118.4) What types of Remedies? Fines; remedial action; nullify results and re-polling; recount; deregistration; disqualification of candidates; referral to AGO and criminal sanctions (imprisonment); exclusion or addition to the voter list Appeal - Appeal from CEC decision to ECAP - Appeal from ECAP decisions to Supreme Court

9. Best practices: Elements for consideration Clarify role and responsibility of all relevant institutions to ensure cooperation Clearly define jurisdiction: Clear and simple procedures Efficient Tracking system and proper archive of complaints filed Design effective prioritization/triage process to ensure that investigators are able to pursue legitimate claims, and prioritize most important complaints affecting the results Consideration for timelines: short deadlines for filing a complaint/appeal, responding or making decision. Collection of evidence, type of evidence, evidence should not have been tampered with: guarantee proper storage and security for sensitive materials Burden and standard of evidence Recommendation for decision and sanction by investigators to the judges Consistent investigation proceedings and decisions Complaints in bad faith and with malicious or negligence: intent Accountability of staff Balance of rights, e.g. fair justice v. speedy adjudication 9

10. Best practices: a step by step Complaint Process 1.Receiving a complaint, allocating case number, and maintaining the record 2.Data-entering the information related to complaint 3.Read the complaint and attached documents/evidence and check that all required elements for valid complaints are present 4.Give opportunity to complainant to correct if missing information and to respondent to present his/her defence 5.Collection of evidence; type of evidence; standard of evidence 6.Hold public hearing: presentation of arguments and evidence 7.Provide legal analysis 8.Recommendation for Decision and Punishment 9.Decision by the arbiters / judges 10.Notify parties involved in the case 11.Publication of the decision 12.Appeal process (if applicable) 10

11. SUCCESSES Informed and competent arbiters: trained and experienced judges Pre-determined: rules of procedures Speedy adjudication: met strict deadlines for a high number of complaints Investigation on its own initiative when justified allegation brought to its attention Public hearing by ECAP Transparency: Publication of decisions on website Memorandum of Understanding between ECAP, Kosovo Police, Judicial Council, Prosecution Office and the CEC on September 2013: task force; Priority to election crime for courts; arrests on E-day and criminal cases opened with potential severe sanctions. Public awareness campaign on task force on adjudication of election crimes for 2013 elections. 11

12. Challenges Strict deadlines potentially put in jeopardy the quality of adjudication (deadline for filing and for adjudication) Limited point of entry for filing complaints Quality of the complaints filed Collection and assessment of evidence; expert’s opinion Open hearing at all level Need of clarification of appeal mechanism against CEC decisions Sustainability of the ECAP structure Clear division of function between ECAP judges and legal officers and strengthen capacity of legal officers 12

13. Challenges (2) Remedies: (1) Strengthen standard for re-polling or cancellation of an election; (2) Collegial sanctions put in jeopardy the principle of proportionality of sanction; (3) election crimes and need for prosecution to deter future violations. Cooperation between relevant institutions e.g. enforcement of remedies and collection of evidence; referral to Prosecutors Lack of information on complaints process: All stakeholders and the public should be informed about how to file a complaints, the deadlines, type of evidence, the adjudication process. Access to justice: fees? 13

14. Steps Forward/Opportunity for Improvement Independence and impartiality (qualification, appointment, accountability)? Review of legal framework & simple and clear procedures Clear jurisdiction to avoid overlap and ensure smooth cooperation? Complaints Process: case management/tracking, from receipt to notification of decision? Fair and effective investigation, taking into consideration standard of evidence and burden of proof and holding a public hearing ? Reasoned and published decisions ? Transparency of the complaints process at all levels? Enforcement of remedies? EDR Structure? Independence v. part of the judiciary? Education/information of election stakeholders? 14