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May 22 Local Self-Government Elections: Evaluation of Post-Election Period, Complaints

Process and Court Disputes


Post-election monitoring for the May 22 local self-government elections uncovered a number of
deficiencies in complaints process in district electoral commissions (DECs) and in courts. DECs
dealt with complaints that sought disciplinary liability of precinct electoral commission (PEC)
members in an inconsistent manner. In addition, courts interpretation of provisions that apply to
electoral disputes was wrong and in conflict with its own practice. Court decisions clearly
illustrated ambiguity of individual provisions that regulate electoral disputes and superficial
approach towards electoral disputes, possibly because of time constraints.
Evaluation of complaints process in DECs
During the May 22, 2016 local self-government by-elections, ISFED filed 11 complaints with
DECs over violations during voting process, counting and tabulation of votes and irregularities in
summary reports. In most of the complaints ISFED sought imposition of disciplinary liability on
PEC members. Five complaints were successful, two were not and remaining four complaints
were not considered.
Majority of violations were found in the voting process and during counting of votes, some of
which included: electoral documentation not properly filled out, voter signatures missing, loss of
a ballot from an electoral district and more.
1. At Kaspi Precinct no.37 - an IDP voted without presenting an IDP card;
2. At Kaspi Precinct no.30 a vote was cast outside the polling booth;
3. At Kaspi Precinct no.32 - information about voters on the list of mobile ballot box was
missing from the unified list of voters;
4. At Kaspi Precinct no.30 inconsistencies between control sheets were found during
counting of votes
5. At Ozurgeti Precinct no.59 number of ballots in the ballot box exceeded number of
signatures by one;
6. At Tskaltubo Precinct no.52 information about voters on the list of mobile ballot box
was missing from the unified list of voters;
7. At Tskatubo Precinct no.50 - a voter placed his ballot into the ballot box without
placing it in the envelope first;
8. At Tskaltubo Precinct no.49 PEC Secretary failed to include address of the first voter
in the control sheet;
9. At Tskaltubo Precinct no.51 voter signature was missing from the list of mobile ballot
box;
10. At Gldani Precinct no.21 number of voter signatures exceeded number of ballots in
the ballot box by one;
11. At Gldani Precinct no.16 PEC registrar forgot to ask a voter to sign along his name on
the list;
ISFED filed complaints in the following DECs:

Name
district

of Number of Successful
complaints complaints

Not
successful Not considered
complaints

Court

Rejected

Rejected

Tskaltubo

Kaspi

Ozrugeti

Gldani

We identified several problematic trends in the complaints process that will seriously hinder the
ability of monitoring organizations to observe upcoming elections and file complaints.
Whenever a PEC member violated the Election Code, ISFED filed a complaint with
corresponding DEC, as prescribed by law, and demanded imposition of disciplinary liability on
PEC member concerned. After reviewing complaints and examining their foundation, DECs
adopted decisions that granted or rejected claims of ISFED. This was the case in Kaspi and
Ozurgeti DECs.
On the other hand, Tskaltubo and Gldani DECs followed conflicting and inconsistent standards
for imposition of disciplinary liability requested by ISFEDs complaints. Specifically, Tskaltubo
DEC refused to consider complaints that concerned violations that had not been recorded in the
PEC Election Day logbook, and it ruled in favor of complaints that concerned violations that had
been recorded in the logbook.
Gldani DEC followed completely different set of standards. It refused to consider any of the
complaints, whether they had been recorded in the logbook or not. Moreover, ISFEDs observer
at the electoral district that had not personally witnessed the violation but had filed a complaint
in the DEC based on the PEC observers report of violation, were deemed unauthorized. The
DEC representatives claimed that the complaint should have been filed by the observer that had
personally witnessed the violation at the polling station.
Evaluation of Complaints Process in Courts
ISFED filed in court to appeal decisions of Tskaltubo and Gldani DECs not to consider certain
complaints.
Tbilisi and Kutaisi city and appellate courts upheld arguments of Gldani and Tskaltubo
commissions and did not change their decisions, which contradicts a decision made by Batumi
City Court in 2013 about a similar issue. Both city and appellate courts upheld the position of
DECs in that imposition of a disciplinary liability can be requested by a monitoring organization,
if:
1. an application or a complaint about a violation is filed with the PEC concerned;
2. a complaint seeking imposition of a disciplinary liability can be filed by an observer that
reported the violation.

Courts interpretation of Articles 72-73 in conjunction with Article 28 was incorrect, which
created a precedent that violates the spirit of the electoral law. In particular, disciplinary
measures for PEC members are regulated by Article 28 of the Election Code stipulating that if a
PEC member violates obligations envisaged by the Electoral Code, s/he will be imposed with a
disciplinary liability. For imposition of a disciplinary liability on PEC members, a higher
electoral commission relies on the rules of simple administrative proceedings established by the
General Administrative Code of Georgia. Therefore, a monitoring organization should file
complaints to only to corresponding DECs. If a monitoring organization files a complaint with a
PEC, it will not be considered because PECs have no authority to consider such complaints.
Apart from this, an individual authorized to file an application/complaint with the EMB
demanding imposition of a disciplinary or administrative liability implies both an observer and a
monitoring organization, as prescribed by para.3 of Article 39 of the Election Code. This means
that when an observer notifies the monitoring organization about a violation of voting and
polling procedures, the organization is authorized to apply to corresponding electoral
commission through an application filed by any of its observers. For this purpose, one should not
differentiate between a monitoring organization and its observer and view them as different
subjects.
This was the position of Batumi City Court in 2013 and the standard followed by other electoral
districts for years, while monitoring organizations filed complaints with DECs for disciplinary
liability in conformity with the requirements of the Election Code, the courts decision and the
practice of DECs.
During court hearings in both city and appellate courts of Tbilisi, judges ignored the principle of
equality of arms and adversarial nature of proceedings, and often acted as a party in favor of the
EMB, not allowing applicants to express their position in an exhaustive manner. Additionally,
judges in city and appellate courts lacked familiarity with the Election Code in general and
provisions of electoral disputes in particular.
DECs and courts were giving unsolicited advice to the monitoring organization by saying, for
instance: an observer at a polling station should write a complaint addressed to DEC and give it
to the mobile team; a complaint should be filed the following day, etc., which can be viewed
as interference with activities of a monitoring organization.
Tbilisi City Court communicated its decision to ISFED three hours before expiration of the
deadline for appealing, giving the latter an extremely limited period of time to prepare an appeal
and file it in court.
Courts decisions clearly illustrated ambiguity of regulations that apply to electoral disputes and
the fact that DECs utilize these regulations in an inconsistent manner.
Timeframe for consideration of electoral disputes in court is unreasonably limited, while courts
lack adequate qualifications.

May 22, 2016 local self-government by-elections were held in seven majoritarian districts.
ISFED monitored the elections through 29 short-term observers, 7 district observers and mobile
teams.