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Electoral Court at odds with international standards

By Yiangos A. Socratous

Even though Cyprus is a member of both the Organisation for Security and Cooperation in Europe (OSCE) and the Council of Europe (CoE), the judicial response to the appeal filed by former Mayor of Limassol Andreas Christou seems to lack essential elements that render the process incompatible with international standards.

According to the final results, in the December 2016 Municipal Elections Christou received 9 votes less than the candidate who was inaugurated as Mayor of Limassol – 30,760 people voted in Limassol. The election appeal of Andreas Christou was submitted within the time limits set in the legislation.

The basic points of the appeal is that omissions and irregularities were committed in the counting of the votes, that arbitrary or inconsistent criteria were used in determining the validity of ballots without any centralised oversight of decisions taken by different polling stations and that these omissions and irregularities in the counting, in combination with the small difference in number of votes received by the two major candidates, altered the final result.

As it appears from the Intermediate Judgments already issued by the Electoral Court, the most serious issue in the handling of the case so far is the lack of transparency manifested through the prevention of access to relevant documents and information.

The second significant issue is that the ongoing process has already exceeded the three-month time limit provided for in the legislation for the conclusion of election appeal court proceedings.

The documents to which access for inspection has not been allowed by the Electoral Court are the following: (a) Polling station ballot counting sheets; (b) Receipts for collection of ballot box and other objects by polling station chairpersons.

In justifying its decision for the denial of access, the Court adopted the argument that the request for access to the documents represents an attempt to “fish for evidence”. However, the Court did not explain how this is possible this case.

A core recommendation of OSCE is that all relevant election documents should be publicly accessible, including election protocols, detailed tabulation and tally sheets, and that the same level of transparency should be granted in relation to proceedings on complaints and appeals on electoral matters.

OSCE stresses that transparency requires not just public access to the proceedings and the documents, but also the inclusion of the adequate reasons and justifications for decisions that are taken.

The CoE considers transparency in the vote count an essential precondition for the protection of basic human rights, and specifically the right of free suffrage.

It is worth noting that the right of access to electoral documents is also part of the more general right of access to information, in accordance with international standards of transparency.

As such, the handling of the election appeal by the Electoral Court and the observed deviations from international standards is attracting the wider interest of citizens and organisations that are active in promoting the wider right of access to information in Cyprus and at a European level.

The delay in the progress of the election appeal trial in Limassol is another indication of the gap between international standards and the manner in which the case is handled by the Electoral Court. Reports by the CoE and the OSCE stress the need to respect timelines.

Another indication of formalism is the bureaucratic treatment of evidence. OSCE mentions as an example of formalism the inadmissibility of evidence concerning violations or errors that occurred during vote count based on the absence of a written objection or of such a violation or error in the “record book”.

On the contrary, the recommendation is to avoid considering polling station records as “conclusive” proof, but to take into account all types of evidence that, under the circumstances are sufficiently, trustworthy.

A stance against formalism in election appeal procedures is taken by the Council of Europe, especially in politically sensitive cases, stating the need to avoid complicated and time-consuming procedures.

The omissions already documented in the court proceedings for the election appeal of the former Mayor of Limassol match the description of formalism made by the CoE, the OSCE and the ECHR.

Nonetheless, the integrity of the process can still be rescued, so that the Republic of Cyprus does not remain exposed.

For this to happen, those responsible for handling the election appeal process should approach it not as a weakness of the political system but as a proof of its strength, openness and transparency.

The writer is a political scientist


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