Open Letter, 25.07.2019

To the Central Electoral Commission of the Russian Federation

OPEN LETTER

According to the Constitution of the Russian Federation (Article 18), the rights and freedoms of a person and citizen determine the meaning, content and application of laws, as well as the meaning of the activities of state and municipal bodies, including electoral commissions, which are endowed by law with certain powers of all the three branches of power, including implementation of the function of justice in the consideration of complaints of violation of constitutional electoral rights.

The ongoing election of deputies of the Moscow City Duma of the seventh convocation demonstrates that the meaning of the electoral legislation and the activities of electoral commissions in these elections is, contrary to the Constitution, restricting the exercise of constitutional rights to elect and be elected, a ban on opposition activities, and a ban on dissent.

According to the legal position of the Constitutional Court (Decree No. 7-P of April 25, 2000), refusals to register candidates represent the highest measure of constitutional and legal liability applicable to candidates, and it is incommensurate to allow it for formal violations of electoral legislation; this is inconsistent with the generally accepted principles of legal responsibility, including the general legal principle of justice, it is unacceptable in a legal state which is proclaimed in Article 1 of the Constitution of the Russian Federation.

In the elections held in Moscow this supreme measure of responsibility was applied to opposition candidates and independent candidates on far-fetched pretexts.

Election commissions acted biased and unlawfully.

Verification of voter signatures was carried out outside the legal field.

According to Article 38 (Clause 3) of the Federal Law “On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum for Citizens of the Russian Federation” (hereinafter – the Federal Law “On Basic Guarantees”), the law of a constituent entity of the Russian Federation should provide for the following:

1. The procedure for verifying compliance with the procedure for collecting signatures;
2. The procedure for verifying compliance with subscription lists;
3. The procedure for verifying the accuracy of information on voters and their signatures;

The Electoral Code of Moscow does not contain such procedures in violation of the specified norms of the Federal Law “On Basic Guarantees”. District electoral commissions acted on their own, in a confused, chaotic and biased way. They massively violated the provisions of  Article 33 Part 14 of the Electoral Code of Moscow, Article 38 Part 5 of the Federal Law “On Basic Guarantees”, as well as paragraph 7, clause 3.2. Methodical recommendations for receiving and verifying subscription lists with voter signatures in support of the nomination (self-nomination) of candidates for elections held in the constituent entities of the Russian Federation (Resolution No. 128/986-6 of the Central Electoral Commission of June 13, 2012) (hereinafter referred to as Recommendations), stipulating that irrelevant reductions, blots, corrections of the data on voters and collectors of signatures cannot serve as grounds for rejecting signatures.

The statements of rejection of signatures were not filled in the course of verification, and they were not signed by responsible inspectors. Files with voter signatures were rechecked repeatedly; statements of rejection were re-written without giving reasons, which indicates either a lack of proper qualification of members of the working groups or a desire to obtain a required final result of the verification of signatures.

Commission members with a deliberative vote nominated by a candidate who submitted voter signatures were not given the opportunity to inspect subscription lists of other candidates, as well as to make copies of the rejected lists, which directly contradicts the law (Article 29 paragraph 22 of the Federal Law “On Basic Guarantees “, Article 22 Part 18 Paragraph 4 of the Electoral Code of Moscow (hereinafter referred to as ECM)).

Members of the working groups of the district electoral commissions worked with pens, the lines of the subscription lists with pens, which did not rule out the possibility for them to make blots and corrections in the subscription lists, and then reject these signatures. They reacted with hostility to candidates’ remarks, which gives reasons to believe that they were fulfilling the direct order of a higher authority, rather than the requirements of the law. The prejudice or lack of any idea about the signature verification procedure was clearly demonstrated by the fact that the verifiers (including experts) considered the blank lines of the signature sheet or those crossed out by the candidate as false information, which directly contradicts Article 38 Part 4 of the Federal Law “On Basic Guarantees” and Article 37 Part 5 of the ECM.

In violation of the position of the Constitutional Court of the Russian Federation, which establishes guilt as the generally accepted principle of accountability, and that is provided for in all the branches of law (Decree No 5-P of January 18, 2019), commissions charged candidates with the mistakes of other entities: banks that incorrectly issued documents for payment of subscription lists; notaries that incorrectly, in the opinion of the commissions, made notarial certifications; printing houses that incorrectly indicated the electoral account in the subscription lists, and due to all this voter signatures were recognised invalid.

The commissions confident of their impunity, as well as the working groups on checking the subscription lists, refused to consider the objections of the candidates and their authorised persons, depriving the candidates of the right to protection and an objective assessment of the submitted signatures.

Electoral commissions and working groups for verifying signatures cynically violated one of the fundamental principles in the work of electoral commissions: the principle of openness and publicity, established by Article 3 Paragraph 5 of the Federal Law “On Guarantees of Electoral Rights and the Right to Participate in a Referendum for Citizens of the Russian Federation”, Article 23 of the ECM.

Statements that the presence of a candidate and his authorised persons, including an election commission member with a deliberative vote, when verifying signatures on signature sheets, does not imply control over compliance with the procedure for verifying signatures and the validity of their rejection, does not correspond to the legal meaning of the norms on publicity and makes the presence of these persons when checking signatures meaningless. We consider such statements irresponsible.

The principle of openness and publicity implies control by equal participants of the electoral process over the actions of each other, which is intended to ensure strict implementation of the provisions of the law at all stages of the electoral process.

According to Article 38 of the Federal Law “On Basic Guarantees” and Article 37 Part 4 of the ECM, experts from law enforcement bodies, justice institutions, military commissariat, and other state bodies can be involved in verifying signatures. At the same time, the law does not provide for the right of electoral commissions to send data on voters and collectors of signatures indicated in the signature lists for verification to the Ministry of Internal Affairs or other bodies.

Sending information for verification to the authorised bodies is provided by law only for candidates, which is detailed in the relevant articles (Article 33 Clauses 6-6.7 of the Federal Law “On Basic Guarantees”, Article 32 of the ECM).

As for voters and signature collectors, the commissions violated the constitutional right to privacy (Article 23 part 1) sending their data to the bodies of the Ministry of Internal Affairs, as well as the ban on collecting and storing information about a citizen without his consent (Article 24 Part 1), the Federal Law “On Basic Guarantees”, as well as the Federal Law “On Personal Data” (Article 16 Part 11).

Formation of a database of citizens as of their political preferences by the internal affairs bodies is a gross violation of the Constitution and bears signs of the Police State.

According to Article 3 Part 3 of the Federal Law “On Basic Guarantees” and Article 37 Part 3 of the ECM,  expert opinions may serve as a basis for declaring information about voters and their signatures in signature sheets false or invalid. It may be so, but not necessarily, and in the present situation they are not entitled to be declared invalid, due to the following reasons:

1. Expert opinions at elections of deputies of the Moscow City Duma discredited the entire electoral process. The verifications were carried out with gross violations of the established procedure, the results of the verifications were not drawn up in accordance with the requirements of the law and cannot serve as a basis for depriving Muscovites of their constitutional rights to elect and be elected.

2. The Centre for Address and Reference Work of the Office for Migration of the Main Directorate of the Ministry of Internal Affairs for the city of Moscow (hereinafter referred to as the Ministry of Internal Affairs service), where information on voters and collectors of signatures was sent in violation of the law, presented upon completion of the verification Tables of information contained in the subscription lists with voter signatures, without entering the information differing from those specified, as required by Appendix No. 8 to the Agreement on Interaction between the Central Electoral Commission of the Russian Federation and the Ministry of Internal Affairs of the Russian Federation No. 08/14295-2016/ 1/8913 dated 2.09.2016, therefore, it is impossible to establish why the service of the Ministry of Internal Affairs considered the information unreliable, which violates the right of candidates to defence and the rights of electoral commissions to objectively evaluate the data on voters.

3. When entering the relevant data from the subscription lists into the GAS Vybory (Elections) System for verification with the use of the Voter Register, system administrators massively entered the data on voters, as well as the data on signature collectors in a distorted form. Distortions were allowed in surnames, names, patronymic names, dates of birth, passport numbers, and addresses of residence of both voters and collectors of signatures. Accordingly, the specialists of the Ministry of Internal Affairs service ruled that this information, based on distortions, was false.

Documents containing a large number of distortions in the data on voters and collectors of signatures, as well as those that do not confirm the validity of claims (failure to provide reliable information) cannot serve as grounds for rejecting voter signatures in support of nomination of candidates and further refusing the candidate to exercise the constitutional passive electoral right.

4. According to Article 38 Clause 6 of the Federal Law “On Basic Guarantees” and Article 37 paragraphs 6 and 7 of the ECM, a handwriting expert may declare invalid voter signatures with corrections in the dates of their inclusion in the subscription list, unless these corrections are specifically stipulated by voters, as well as signatures of voters, if the dates of entering them into the lists are not personally recorded by voters. Expert opinions should be set out in written form (in the record sheets of subscription lists and other documents).

This provision does not mean that this type of expertise (the outcome of which determines the decision on the constitutional right to elect and be elected) can be carried out without complying with the basic principles and provisions established by the Federal Law “On State Forensic Expert Activities in the Russian Federation.”

However, in violation of this law, the Central Electoral Commission of the Russian Federation established  in its Recommendations that handwriting expertise of handwritten notes and signatures in the subscription lists for elections at various levels in the Russian Federation represent a special type of handwriting studies that should be carried out according to a special technique that differs significantly in a number of positions from traditional identification handwriting research techniques. This technique, according to the Central Electoral Commission, was developed by the Institute of Criminalistics of the Centre for Special Techniques of the Federal Security Service of Russia, agreed with the relevant expert services and approved at the meeting of the Federal Interdepartmental Coordination and Methodological Council for Forensic Examination and Expert Research. The technique was used to verify subscription lists during the federal election campaigns of 2011–2012.

The fact that the use of this method in the federal elections of 2011-2012 contributed to a large number of refusals to register candidates and was one of the reasons which led to numerous protest rallies, testifies to the unsuitability of such examinations.

In violation of Article 18 of the Constitution of the Russian Federation, the Central Electoral Commission of the Russian Federation simplified the possibility for experts to recognise voter signatures invalid, on the other hand, it made it difficult for candidates, parties and voters to exercise their constitutional right to elect and be elected, while Article 55 Part 5 of the Constitution states that human rights and freedoms of a person and a citizen may be limited only to the extent necessary to protect the foundations of the constitutional order, morality, health, the rights and legitimate interests of others, ensure the defence of the country and security of the State.

5. According to the universal principle of evaluation of evidence in all branches of law, no evidence is pre-established, thus, the testimony of voters and expert opinions have the same legal force (Article 67 of the Civil Procedure Code, Article 84 of the Administrative Judicial Procedure Code, Article 17 of the Criminal Procedure Code).

When living people are recognised by experts to be dead, and politically active citizens who have put their signatures in support of the nomination of a candidate are recognised disreputable falsifiers, this means that the electoral system is in crisis.

THE RUSSIAN UNITED DEMOCRATIC PARTY YABLOKO DEMANDS THE FOLLOWING:

1. Признать заключения экспертов МВД и экспертов-почерковедов не соответствующими требованиям закона. Признать действительными все подписи избирателей, признанные ранее недействительными на основании указанных выше заключений экспертов.
2. To recognize the conclusions of experts of the Ministry of Internal Affairs and handwriting experts who do not meet the requirements of the law. To recognize as valid all voter signatures that were previously declared invalid on the basis of the above expert opinions.

2. To recognise as valid the signatures of voters who have confirmed their support for the nomination of candidates in writing or orally.

3. To recognise unsatisfactory the work of the Moscow City Electoral Commission on the preparation and conduct of elections to the Moscow City Duma at this stage of the election campaign.

Emilia Slabunova,

Yabloko Chair                                                                                                              

Yelena Dubrovina,

Member of Yabloko Political Committee