Ārvalstu tiesu prakse

Vēlēšanu rezultātu atcelšana kampaņas pārkāpumu dēļ

Čehijas lieta "“NADVORNIK” (atstāstu var atrast Venēcijas komisijas mājas lapā)

Ļoti interesants disputs starp divām Čehijas tiesām - Augstāko Administratīvo tiesu un Konstitucionālo tiesu - par vēlēšanu principiem, rezultātu atcelšanas kritērijiem un administratīvo resursu (pašvaldībai piederoša laikrakstu) izmantošanu kampaņā.

2009.gada semināra materiāls par vēlēšanu strīdiem

Equality of opportunity, particularly regarding access to the media, is often breached, while too often only lip service is paid to the neutrality of the media, as provided for in the Code of Good Practice in Electoral Matters[38] and in a specific Committee of Ministers recommendation.[39] Legislation designed to secure equal coverage is often understood to be confined to specially designed broadcasts. Unfortunately, the constitutional case-law consulted does not seem to have done much to remedy the situation. For example, the Russian constitutional court has ruled that unless the courts have decided explicitly that the clear intention was to make propaganda, the actions of the media cannot be regarded as constituting propaganda or as a violation of a corresponding prohibition.[40] It is extremely difficult to establish that breaches are sufficiently serious to warrant the overturning of an election. Thus the Slovakian constitutional court has ruled that only serious and recurrent infringements of the law provide legal grounds for this sanction.[41] It is easier to establish a violation when the inequalities have a basis in law, such as a ban on parties that are members of a coalition from exercising their right to media coverage separately.[42]
There is slightly more case-law on other forms of abuse during election campaigns. One of the French constitutional council's first decisions was to set aside an election because of unlawful propaganda, particularly emanating from certain public bodies.[43] The Ukrainian constitutional court has criticised one of the most frequent abuses, sometimes known as "abuse of administrative resources". It stated that officials of executive bodies are prohibited from participating in electoral campaigns at any time, work or leisure.[44] Similarly, in France local government staff may not take part in election campaigns during working hours.[45]
[38]CDL-AD(2002)023rev, I.2.3.a.ii and I.3.1.a.i.
[39] Recommendation R (99) 15 on media coverage of election campaigns.
[40] RUS-2003-3-006 (judgment of 30 October 2003).
[41] SVK-1994-3-006 (judgment of 2 November 1994).
[42] CRO-1999-3-021 (judgment of 17 December 1999).
[43] FRA-1959-S-003 (judgment of 9 July 1959). See also FRA-1959-S-001 (judgment of 5 January 1959).
[44] UKR-2005-1-003 (judgment of 24 March 2005).
[45] FRA-2002-3-007 (judgment of 26 September 2002).

Valsts finansējuma jautājumi

Vācijas, Horvātijas, Slovēnijas, Unigārijas konstitucionālo tiesu atziņas no Venēcijas komisijas 2001.gada partiju finansēšanas vadlīnijām pievienotā ziņojuma:

The German Federal Constitutional Court acknowledges the need for public funding not only of campaign expenses, but also of expenses incurred in connection with political parties' routine activities, on condition that state aid is in inverse proportion to each party's self-financing capacity and is calculated solely on the basis of funding requirements absolutely essential to the proper functioning of the public authorities.

In Croatia, for example, the Constitutional Court has upheld the right of a political party representing a national minority to apply for reimbursement of its campaign expenses by the state. In even more precise terms, the Constitutional Court of Slovenia has held, conversely, that grants made to political parties by the state, calculated on the basis of the score obtained in local elections, do not breach the constitutional principles of the right to local self-government and the right to vote.

In Hungary the Constitutional Court has ruled that the legislation providing for state aid to be granted solely to parties which obtained more than 1% of the votes cast in the preceding election is not unconstitutional.

2009.gada semināra materiāls par vēlēšanu strīdiem

The thresholds for securing public funding are generally below those necessary to win seats. The Czech constitutional court has even stated that it must be significantly lower, and below 3%.[48]
[48] CZE-2005-1-001 (judgment of 19 January 2005); CZE-2000-1-002 (judgment of 13 October 1999).

Materiāls, kur pieminēta Vācijas Federālās Konstitucionālās tiesas prakse:

Public election financing is a highly controversial topic in Germany. The regulations on public election financing have been amended several times, in some cases due to rulings of the Federal Constitutional Court. In 2005 the Federal Constitutional Court has declared a regulation unconstitutional which stipulated that a party only qualified for public election financing if it had received at least 1 percent of the votes in the past three state elections (Landtagswahlen) or at least 5 percent of the vote in the latest state election if it received less than 0.5 percent of the vote in the latest European and the latest federal election. Today according to German law, a political party is entitled to receive public election financing if the party received at least 0.5 percent of the nationwide vote in the most recent European or federal elections, or 1 percent of the vote in the latest state election.

Provisions which stipulate public election financing can easily distort the competition between political parties. The Federal Constitutional Court has ruled that the principle of equal opportunities in elections requires the government to refrain from intervening in the competition of political parties. On the one hand, small parties should have the same opportunity to benefit from public party financing. It is one of the central principles of the free democratic basic order that the political process be open to new political ideas and new political parties. Samll parties are vital for the competition in a multi-party system. Therefore all parties shall have the same opportunities and the same access to the "political market". On the other hand, it should be assured that the parties have demonstrated a certain degree of seriousness – which can be assumed if a certain percentage of the voters actually supported the party.

Partiju komercdarbība

Čehijas konstitucionālās tiesas atziņa no Venēcijas komisijas 2001.gada partiju finansēšanas vadlīnijām pievienotā ziņojuma:

Czech Constitutional Court did away with legislation prohibiting parties from carrying on commercial activities. Czech political parties can now bring out publications and hold cultural events for fund-raising purposes.

Privātpersonu ziedojumi partijām

Japānas Augstākās tiesas atziņa no Venēcijas komisijas 2001.gada partiju finansēšanas vadlīnijām pievienotā ziņojuma:

In Japan, in a decision of 24 June 1970 the Supreme Court ruled that, although private firms could also continue to finance parties, under no circumstances must this become a means of exerting pressure on the parties concerned.

In Japan, in a decision of 24 June 1970 the Supreme Court held that private firms could contribute funds to political parties, on condition that such financing did not constitute or become a means of exerting pressure on the parties concerned.

Citi aģitācijas nosacījumu pārkāpumi

Analīze par Grieķiju

According to the case law, reference to exit polls on certain television channels before the end of the ballot, although reprehensible and subject to criminal and administrative penalties, cannot influence the expression of the will of the voters sufficiently to warrant annulment of the elections (judgment 66/1997).

Partiju tēriņu "griesti"

2009.gada semināra materiāls par vēlēšanu strīdiem

The Russian constitutional court has concluded that the financing of election campaigns is also to some extent an aspect of the equal opportunities principle. It has found that the purpose of the ban on citizens' independently financing propaganda is to ensure the equality of candidates, as well as the transparency of election financing.[46] Without going into the detail of the debate, this approach appears to be completely at variance with that of the United States Supreme Court, which accepts a ceiling on private donations but considers them to be important for freedom of speech and association and prohibits ceilings on expenditure.[47] Purely state funded campaigns might be the impartial ideal in an ideal world where there was complete separation of machinery of state and the governing authorities.
[46] RUS-2006-2-003 (judgment of 16 June 2006).
[47] See in particular Buckley v. Valeo of 30 January 1976, 96 Supreme Court Report 612 (1976).

Trešo personu izdevumi

38. The Court finds it clear that the purpose of section 75, particularly taken in the context of the other detailed provisions on election expenditure in the 1983 Act, is to contribute towards securing equality between candidates. It therefore concludes, as did the Commission, that the application of this law to Mrs Bowman pursued the legitimate aim of protecting the rights of others, namely the candidates for election and the electorate in Halifax and, to the extent that the prosecution was intended to have a deterrent effect, elsewhere in the United Kingdom.
39. The Government maintained that section 75 of the 1983 Act imposed only a partial restriction on expenditure (see paragraph 31 above), which was no more extensive than was necessary to achieve the legitimate aims pursued. They pointed out that there had been other means of communication open to Mrs Bowman, for example, she could have started her own newspaper, had letters or articles published in the press, given interviews on radio or television, stood for election herself or published leaflets with the purpose of informing the electorate without promoting or opposing any particular candidate.
40. The applicant, as did the Commission, considered that the restriction was disproportionate. She contended that there was no pressing social need to suppress the dissemination of factually accurate information about the position of candidates for public office on important moral issues; on the contrary, there was a pressing need to permit such matters to be put on the political agenda prior to elections. Despite the Government’s submission that the restriction was necessary to ensure equality between candidates, there was no indication that Mrs Bowman’s leaflets had operated to disadvantage any particular candidate, since it was possible that the information they contained attracted as many supporters as opponents of the different policies on abortion. Furthermore, she asserted that the restriction was illogical since no limit was placed on the powers of the mass media to publish material in support of or opposition to candidates or on the political parties and their supporters to pay for advertising at national or regional levels as long as they did not attempt to promote or prejudice the electoral prospects of any particular candidate.
41. The Court observes, in the first place, that the limitation on expenditure prescribed by section 75 of the 1983 Act is only one of the many detailed checks and balances which make up United Kingdom electoral law. In such a context, it is necessary to consider the right to freedom of expression under Article 10 in the light of the right to free elections protected by Article 3 of Protocol No. 1 to the Convention, which provides:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
42. Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 22, § 47, and the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, §§ 41–42). The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the “conditions” necessary to “ensure the free expression of the opinion of the people in the choice of the legislature” (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 24, § 54). For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely.
43. Nonetheless, in certain circumstances the two rights may come into conflict and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the “free expression of the opinion of the people in the choice of the legislature”. The Court recognises that, in striking the balance between these two rights, the Contracting States have a margin of appreciation, as they do generally with regard to the organisation of their electoral systems (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, pp. 23 and 24, §§ 52 and 54).
44. Turning to the facts of the present case, the Court’s task is to determine whether, in all the circumstances, the restriction on Mrs Bowman’s freedom of expression was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities in justification of it were relevant and sufficient (see the above-mentioned Lingens judgment, p. 26, § 40).
45. In this connection it finds it significant that the limitation on expenditure contained in section 75 of the 1983 Act was set as low as GBP 5. It recalls that this restriction applied only during the four to six weeks preceding the general election (see paragraphs 16 and 18–19 above). However, although it is true that Mrs Bowman could have campaigned freely at any other time, this would not, in the Court’s view, have served her purpose in publishing the leaflets which was, at the very least, to inform the people of Halifax about the three candidates’ voting records and attitudes on abortion, during the critical period when their minds were focused on their choice of representative (see paragraph 11 above).
46. The Court notes the Government’s submission that the applicant could have made use of alternative methods to convey the information to the electorate. However, it is not satisfied that, in practice, she had access to any other effective channels of communication. For example, it has not been demonstrated that she had any way of ensuring that the material contained in the leaflets was published in a newspaper or broadcast on radio or television. Although she could herself have stood for election and thus become entitled to incur the statutory amount of expenses allowed to candidates, this would have required her to pay a deposit of GBP 500, which she would in all probability have forfeited (see paragraphs 17 and 18 above). Furthermore, it was not her desire to be elected to Parliament, but only to distribute leaflets to voters.
47. In summary, therefore, the Court finds that section 75 of the 1983 Act operated, for all practical purposes, as a total barrier to Mrs Bowman’s publishing information with a view to influencing the voters of Halifax in favour of an anti-abortion candidate. It is not satisfied that it was necessary thus to limit her expenditure to GBP 5 in order to achieve the legitimate aim of securing equality between candidates, particularly in view of the fact that there were no restrictions placed upon the freedom of the press to support or oppose the election of any particular candidate or upon political parties and their supporters to advertise at national or regional level, provided that such advertisements were not intended to promote or prejudice the electoral prospects of any particular candidate in any particular constituency (see paragraph 22 above). It accordingly concludes that the restriction in question was disproportionate to the aim pursued.

Politisko reklāmu aizliegums

Eiropas Cilvēktiesību tiesas 2008.gada 11.
decembra spriedums lietā TV VEST AS & ROGALAND:

PENSJONISTPARTI v. NORWAY
70. In this regard, the Court notes that the rationale for the statutory prohibition of broadcasting of political advertising through television was, as stated by the Supreme Court, the assumption that allowing the use of such a form and medium of expression was likely to reduce the quality of political debate generally. In this way complex issues might easily be distorted and groups that were financially powerful would get greater opportunities for marketing their opinions than those that were not. Pluralism and quality were central considerations, as was the fact that it was the legislator who had given the ramification in question for the democratic processes, the legislator being better placed than any other State organs in assessing how best to achieve those objectives. The Government pointed out that the ban had been limited to political advertising on television due to the powerful and pervasive impact of this type of medium. Moreover, the prohibition had contributed to limiting election campaigns costs, to reducing participants' donor dependence and ensuring a level playing field in elections. It was aimed at supporting the integrity of democratic processes, to obtain a fair framework for political and public debate and to avoid that those who were well endowed obtained an undesirable advantage through the possibility of using the most potent and pervasive medium. Also, it helped to preserve the political impartiality of television broadcasting. These are undoubtedly relevant reasons (see VgT, cited above, § 73).
71. However, the Court is not convinced that these objectives were sufficient to justify the interference complained of.
72. In the first place, there is nothing to suggest that the Pensioners Party fell within the category of parties or groups that were the primary targets of the disputed prohibition, namely those which because of their relative financial strength might have obtained an unfair advantage over those less endowed by being able to spend most on broadcast advertising (see VgT, cited above, § 75).
73. On the contrary, while the Pensioners Party belonged to a category which the ban in principle was intended to protect, the Court, unlike the majority of the Supreme Court (see paragraph 62 of its judgment, quoted at paragraph 20 above), is not persuaded that the ban had the desired effect. In contrast to the major political parties, which were given a large amount of attention in the edited television coverage, the Pensioners Party was hardly mentioned. Therefore, paid advertising on television became the only way for the Pensioners Party to get its message across to the public through that type of medium. By being denied this possibility under the law, the Pensioners Party's position was at a disadvantage, compared to that of major parties which had obtained edited broadcasting coverage that could not be offset by the possibility available to it to use other but less potent media.
74. The Court further notes that it has not been contended that the specific advertising at issue contained elements that were capable of lowering the quality of political debate (see VgT, cited above, § 76).
75. Moreover, as mentioned above, it does not appear that the advertising could give rise to sensitivities as to divisiveness or offensiveness making a relaxation of the prohibition difficult. In this regard, as already stated, the case under consideration is distinguishable from that of Murphy, where it was such sensitivities that led the Court to accept that the filtering by a public authority, on a case by case basis, of unacceptable or excessive religious advertisings would be difficult to apply fairly, objectively and coherently and that a blanket ban would generate less discomfort (§§ 76-77). Whilst, in VgT, where there were no such sensitivities at hand and which raised issues more akin to those in the present instance, the Court struck down on the blanket ban on political advertising as applied in that case.
76. In these circumstances, the fact that the audio-visual media has a more immediate and powerful effect than other media (see Jersild, cited above, § 31), albeit an important consideration in the assessment of proportionality (see Murphy, cited above, § 69), could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertising at issue (see VgT, cited above, § 74).
77. The view expounded by the respondent Government, supported by the third party intervening Governments, that there was no viable alternative to a blanket ban must therefore be rejected.

72. The Court will consequently examine carefully whether the measure in issue was proportionate to the aim pursued. In that regard, it must balance the applicant association’s freedom of expression, on the one hand, with the reasons adduced by the Swiss authorities for the prohibition of political advertising, on the other, namely to protect public opinion from the pressures of powerful financial groups and from undue commercial influence; to provide for a certain equality of opportunity among the different forces of society; to ensure the independence of broadcasters in editorial matters from powerful sponsors; and to support the press.
73. It is true that powerful financial groups can obtain competitive advantages in the area of commercial advertising and may thereby exercise pressure on, and eventually curtail the freedom of, the radio and television stations broadcasting the commercials. Such situations undermine the fundamental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, in particular where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive. Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism of which the State is the ultimate guarantor. This observation is especially valid in relation to audio-visual media, whose programmes are often broadcast very widely (see Informationsverein Lentia and Others v. Austria (no. 1), judgment of 24 November 1993, Series A no. 276, p. 16, § 38).
74. In the present case, the contested measure, namely the prohibition of political advertising as provided in section 18(5) of the Federal Radio and Television Act, was applied only to radio and television broadcasts, and not to other media such as the press. The Federal Court explained in this respect in its judgment of 20 August 1997 that television had a stronger effect on the public on account of its dissemination and immediacy. In the Court’s opinion, however, while the domestic authorities may have had valid reasons for this differential treatment, a prohibition of political advertising which applies only to certain media, and not to others, does not appear to be of a particularly pressing nature.
75. Moreover, it has not been argued that the applicant association itself constituted a powerful financial group which, with its proposed commercial, aimed at endangering the independence of the broadcaster; at unduly influencing public opinion or at endangering equality of opportunity among the different forces of society. Indeed, rather than abusing a competitive advantage, all the applicant association intended to do with its commercial was to participate in an ongoing general debate on animal protection and the rearing of animals. The Court cannot exclude that a prohibition of “political advertising” may be compatible with the requirements of Article 10 of the Convention in certain situations. Nevertheless, the reasons must be “relevant” and “sufficient” in respect of the particular interference with the rights under Article 10. In the present case, the Federal Court, in its judgment of 20 August 1997, discussed at length the general reasons which justified a prohibition of “political advertising”. In the Court’s opinion, however, the domestic authorities have not demonstrated in a “relevant and sufficient” manner why the grounds generally advanced in support of the prohibition of political advertising also served to justify the interference in the particular circumstances of the applicant association’s case.
76. The domestic authorities did not adduce the disturbing nature of any particular sequence, or of any particular words, of the commercial as a ground for refusing to broadcast it. It therefore mattered little that the pictures and words employed in the commercial at issue may have appeared provocative or even disagreeable.

Analīze par Grieķiju

In a recent judgment, the Court had to interpret a provision of the Electoral Act whereby it is forbidden to engage in election campaigning or issue election messages on the eve or day of the election. The Court held that the messages prohibited are those issued publicly to a broad public and an indeterminate number of people. Text messages sent by mobile phone are therefore not prohibited messages: they are private messages addressed to a finite, albeit possibly large, number of people and therefore constitute a means of personalised communication (judgment 23/2008).

Citi tiesu procesi

Labs apkopojums atrodams TIDE rokasgrāmatas 68.-74.lpp.

Vēl jāuzraksta par Buckley v Valeo; Robert Libman v. Attorney General of Quebec

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