3. International legal aspects of standard regulation of pre-election campaign in the modern democratic states.

Degree of development of an electoral system, legal regulation of elections in national legal systems are some kind of the indicator showing as in this or that country institutes of a lawful state and a civil society including as in practice the civil and political rights are realised function.

The corresponding conclusion can be made, having analysed the international democratic standards of elections and, having compared them with guarantees of realisation of the right to free and fair elections in the separate states.

The international experience of regulation of selective process testifies that to a problem of realisation of suffrages, including the rights to pre-election campaign, the important attention was always paid, it found reflexion as in legislative regulation, and elections practice.

Preparation and elections without fail assumes today an establishment of variety of the norms fixing such rights, as the right to information freedom, the right to a freedom of assembly and associations, the right to ballot. All political propaganda, all information actions directed on preparation of electorate to elections - the integral elements of the elections, called to function without any unreasonable intervention.

In foreign countries pre-election campaign has various legal regulation, but the corresponding positions of constitutions regulating the basic political rights and freedom of citizens everywhere are put in its basis practically. Constitutions, regulating suffrage questions, register norms about elections in the sections devoted to the rights and freedom of citizens where the right to select and be the selected works is among the major political rights more often. So, for example, chapter 1 of a part of 4 Constitutions of Brazil «Citizenship and the civil rights» is completely devoted questions of active and passive suffrages of citizens.

In some foreign constitutions the order of elections is in detail regulated, ways and an order of definition of results of voting are fixed.

Overwhelming majority of constitutions mark necessity of more detailed legal regulation of elections by the edition of special laws. So, pre-election campaign legal regulation

It is carried out in laws on political parties, on mass media, on the suffrage. For example, in the Mexican United States the Federal act «About the political organisations and the suffrage», in Spain — the Organic law 2 from January, 18th, 1980 «On regulation of various kinds of a referendum», in the Austrian Republic — the Federal act from July, 2nd, 1975 «About problems, financing and pre-election campaign of political parties (Political parties law)» operates. Basically this regulation is limited to special sections, heads of laws on elections. And in a number of the countries pre-election campaign is presented as "election campaign" (Albania, Bulgaria, Hungary, Poland), as "election campaign" (Kazakhstan, Romania, Slovak Republic), as "propaganda" (Lithuania) as «representation of candidates» (Macedonia) or is not allocated absolutely not as a separate stage of selective process (Belarus). [121]

The XX-th century has designated appreciable and fast development of the international norms providing carrying out of free and fair elections among which the important place is occupied with the democratic standards guaranteeing the right to have and express political and other belief and to transfer to their another, access freedom to the information and mass media, freedom of associations, meetings during election campaigns.

The specified norms have found the fastening, in particular, in positions of article 19 of the International pact about the civil and political rights by which it is fixed:

«1. Each person has the right to adhere to the opinions free.

2. Each person has the right to free expression of the opinion, this right includes freedom to search, receive and extend any information and ideas irrespective of frontiers orally, in writing or by means of the press or art forms of expression, or different ways at the choice.

3. Using provided in point 2 of present article the rights imposes special duties and special responsibility. It can be interfaced, hence, with some restrictions which, however, should be statutory and are necessary:

For respect of the rights and reputation of other persons;

For protection of state security, a public order,


Health and morals of the population ».

The major role in business of fastening of guarantees of realisation of pre-election campaign belongs to the Declaration on criteria of the free and fair elections, accepted on March, 26th, 1994 at 154th session of Council of the Inter-parliamentary Union in Paris. In its article 1 position that is fixed: «In any state completeness of the power can result only from [122]

Wills of the people expressed on original free and fair elections, organizuemyh through the regular periods on the basis of general equal and ballot », that a state duty is acceptance of national programs of a secular education,

1 ' Z g

Population training to selective rules and procedures.

The international community, establishing the above-named guarantees, recognised that compulsory condition of a free choice knowledge of the population is. Objective information programs for voters and an unobstructed political propaganda are the major elements of original elections. Absolutely clearly, that not having access to the information on candidates, parties and process of elections, voters cannot neither formulate, nor express this will. The democratic society and a lawful state where freedom of access of citizens to political, legal, any other socially significant information is not guaranteed are impossible, freedom of advancement of everyone in an information field is not provided. -

Except the named international documents there are also the documents accepted in Meeting on safety and cooperation in Europe (SBSE) at conference on human measurement, passing in three stages: in Paris in 1989, in Copenhagen in 1990. Its final stage has taken place in Moscow in 1991. Already in the Document Copenhagen meeting of Conference on human measurement SBSE pre-election campaign guarantees have been developed and added. [123 [124] [125]

So, for example, point 7 of the named Document says, that the law and a state policy should provide elections to atmosphere of freedom and honesty, an unimpeded access to mass media of all political groups and the separate persons participating in selective process. The attention to necessity of maintenance of appropriate conditions for activity of political parties and their equality before the law and authorities is here too paid.

Foreign experience shows, that in election campaign the freedom of speech and freedom of the mass information are definitely built in the general structure of institute of elections, creating a political information field necessary for realised will. From here follows, that most closely freedom of the mass information adjoins to the right to pre-election campaign. After all the freedom of speech creates a basis for public discussion on any significant for the population to questions of ability to live of a society and the state, and the right to pre-election campaign describes a certain circle of competences of corresponding subjects on participation in the discussion devoted to more concrete and more important questions, connected with an estimation of activity of parliamentary parties and separate deputies, discussion of electoral programmes of candidates, and also country developments during the period after elections and many other things. Thus, the right to the pre-election campaign, providing free will is obvious, that, cannot exist without a recognition the state of a freedom of speech and the mass information, being the base of a democratic society and a legal platform of political debate. Today it admits practically everywhere. So, the European Court under human rights in the decision on business Lingens against Austria has noticed, that «freedom of political debate is a kernel of the concept of a democratic society». The technical group of the United Nations Organization in the report on a referendum in Malawi established: «That voters could make conscious, [126] the choice based on due informing, giving the voices for this or that candidate on the polling district, a necessary condition



It active use of the right of freedom (will) »is. Similar statements can be resulted and in connection with other situations.« The freedom of speech out of any doubts is a fundamental principle of any democratic society as without free discussion, especially political questions, there will be impossible an education or population formation so necessary for due functioning of the responsible government and realisation of corresponding processes by it », — marked, for example the Supreme Judge of Nigeria Энугу.140 the Israeli Supreme Court in several decisions specified that« real democracy and a freedom of speech are a single whole. The freedom of speech gives the chance to each individual to develop its or its own independent opinion at decision-making, that vital in any democratic state. The being of democratic elections consists in possibility to have access to the points of view based on the information, to estimate them and to present for wide open discussion... ».141?

Hardly there will be one more same sharp subject of the international relations as selective process on which the states so zealously would weigh all nuances of a principle of respect of their sovereignty, inadmissibility of intervention in their internal affairs, infringements of their domestic jurisdiction. And the more strongly in the concrete state totalitarianism elements (irrespective of its nature), the more actively the authorities of such state are fenced off from external "intervention".

139 Report of Technical group of the United Nations Organization on carrying out of a free and fair referendum of an one-party system/multi-party system of Malawi (on November, 15-21th, 1992), point 26./See: the theory and practice. M., 2004. With. 40.

140 State against Ivory Trumpet Publishing Co. [1984 5 NCLR 736, the Supreme Court, Enugu, on January, 31st, 1983, was a point of issue in Article 19 of the Directory about freedom voleizjavlenija./See: the theory and practice. M., 2004. With. 41.

141 Zevejai against the Central electoral commission on elections in the Knesseth 13 convocations, and also Association by the civil rights in Israel against Department of broadcasting of Israel, HC 869/92 and 931/92; 46 (2) Piskej Dynes, 692J See: the theory and practice. M., 2004. With. 41.

As a rule, the international legal norm finds force in sphere of interstate regulation by means of its transformation in norm of the internal law that is reached by an adoption of law, the edition of other interstate certificate or incorporation in the internal law otherwise (for example, through judiciary practice as it takes place in the English-Saxon legal system). The international selective norms undergo such procedure. To be exact, it is possible to speak about the following chain: 1) selective norms-standards of the advanced democratic states — 2) occurrence under their influence of the international norms of the suffrage - 3) "familiarising" with this process of other states.

Thus, probably, it is necessary to agree with the point of view that «transformation means creation of new norms of the internal law by transformation of norms of international law to norms of the domestic law, instead of purely technical process of publication or introduction to contract action on state territory».142 *

Not always transformation passes smoothly and unequivocally. At times the deviation from the conventional international principles occurs from - * for absence of due international legal base. As an example of the reasons of absence of transformation of the international rules of law in the internal law it is possible to result the Federal act of the Russian Federation «About the general principles of the organisation of local government in the Russian Federation» 143 in which at local level attempt of withdrawal of electoral processes is made of a suffrage subject domain. Authors of the bill thus were guided by the European Convention on protection of human rights and fundamental freedoms which establishes selective standards primenitelno only to elections in a power legislature (item Z of Report №1) and does not extend

t Mironov I.V.Soviet the legislation and international law. M., 1968. С.38.

143 Federal act of the Russian Federation from October, 6th, 2003 № 131-FZ «About the general principles of the organisation of local government in the Russian Federation» (from amendment from July, 21st, 2005)//Help system "Guarantor" (26.10.2005).

On the legal relations connected with municipal elections. Such narrow understanding of limits of action of the international norms and object of their regulation leads to refusal of observance of the conventional principles and norms of the international suffrage (free, original elections, general, equal, a direct suffrage), and also from application to local elections and referenda of norms of the guarantee suffrage. As a result of such approach to regulation of separate processes (withdrawal from a subject domain of the suffrage regulation of electoral processes at local level) are possible not only infringements of suffrages and freedom of citizens, but also occurrence of political and social conflicts. The right of the state to introduction of restrictions in selective process is caused by its general international legal and international political obligations on the international institute of the suffrage which have uncertain enough character. In this sense it is possible to consider as the big step forward coming into force (on November, 11th, 2003) Conventions on standards of democratic elections, suffrages and freedom in the state-participants of the Commonwealth of Independent States. In it it is concrete enough (concerning other international certificates) criteria of democratic elections are established.

At the same time, realities of today are that, that if the restrictions imposed by concrete governing bodies, contradict the international rights and obligations of the state in the field of regulation of selective process, responsibility of such bodies. Can come only in case the national legislation and-or other regulating documents in the field of selective process are brought into accord with the specified rights and state obligations. Differently, the state bodies do not apply directly international norms in this case, strictly being guided on

Effective standards of the national legislation. Practice of the Supreme Court of the Russian Federation, for example, testifies to it.

Therefore, proceeding from the collective will of the states expressed through the international institute of the suffrage, at a pre-election campaign stage should exist international (along with national) the mechanism of the control over acceptance of corresponding due legislative or other measures of maintenance of selective process, and also an establishment of the neutral, impartial and balanced mechanism of the organisation and elections, an exception of opposite estimations of elections from the international missions of supervision (OSCE, EuroParliament - on the one hand, and Executive committee of the CIS - with another).

Connected to selective process the international (regional) community of the states is direct during elections it appears the passive observer of an actual state of affairs in the given area which quite often does not answer the international selective standards and political obligations of the states. Thus the supervision estimation is only ascertaining of already come true fact which is not generating legal consequences.

The right to regulation of selective process according to the constitution and other laws of the state is real, unlike the adjective law fixed in norms of the international certificates in the field of the suffrage. It means, that the last have no direct action and cannot directly oblige subjects of the domestic law besides procedure of introduction existing in the corresponding state in action of the international obligations of the state, legal and political.

The state sovereignty is not limited because according to norms of international law and the international political norms of the state are allocated with the certain rights and

Perform duties in questions of selective process. The states, thus, operate only within the limits of the international collective will generated with their participation, realising the sovereignty

Here it is necessary to stop on an escalating problem of export of "revolutions of roses» which have been carried systematically out in Georgia, Ukraine, Kirghizia. Objectively developed economic rupture between the western countries and the former socialist camp allows the first to direct not limited means for support of democracy of the last. What is correctly and is justified. But when "help" in carrying out of pre-election actions purposefully arrives only in the certain political organisations and to certain persons, is not clear whom and as chosen in quality of "democracy locomotives» in the concrete state, it, perhaps, is inadmissible as deforms sense of democratic transformations. Unfortunately, this question was beyond international law regulation, but has the direct relation to principles of the organisation and carrying out of democratic elections на* the all-European space and demands its prompt permission and regulation. L

Process SBSE/OBSE can be considered, how a political factor all-European «legal building», having small enough actually legal maintenance.

The European states show big enough

Independence in the legal regulation of elections. It is connected by that requirements of norms of the European right, rights SE, documents OBSE/SBSE far are not always concrete, and more often in general are limited to the general principles of the suffrage - free, original, general, equal elections etc. freedom of the discretion under condition of observance of principles of free, original, periodic elections is given the National legislator. At the same time, interpretation


Regional rules of law allows and to establish in this area known restrictions.


C the account of it the corresponding area of selective process appears is under control to the European institutes and, theoretically, passage of any complaint to level of the European Court under human rights (regarding points of order) is possible.

As a whole it is possible to notice, that the European organisations have legal means of influence for internal policy of the states in this question, and in the long term can have still big by expansion of area of the European legal regulation of selective legal relations. At the same time the European states within enough wide principles of the suffrage possess big freedom of the discretion in own legal regulation of selective legal relations and, in particular, regulation of political advertising and pre-election campaign.

In Belgium, since 1998, the Flemish Law on tele-radio broadcasting * forbids political advertising on radio and TV (article 80 item 3). Position about an interdiction of political advertising for radio and TV і has been included in the Flemish Law on tele-radio broadcasting when the Flemish parliament has realised, that in the federal act about pre-election campaign and financing of political parties the such interdiction is not provided. Was not the effective tool for an interdiction of political advertising for radio and TV and position of item 1 of article 81 of the Flemish Law on the tele-radio broadcasting, forbidding advertising with political underlying reason for the messages of political character paid by political parties did not fall under definition of concept the "advertising" containing in the Flemish Law on tele-radio broadcasting (and in the Instruction «TV without borders»).

However item 3 of article 80 included in the Law on tele-radio broadcasting in 1998, forbade only such messages paid by political parties,

Which are directed on advancement of these parties. Thereof there could be an impression, that the given point does not interfere with messages which set as the purpose advancement of the separate political. Figures or candidates on elections. After the Flemish commissariat on affairs of mass-media (Flemish body of regulation of mass-media) has accepted on September, 23rd, 2002 the decision, according to which such individual political messages do not come within the purview of item 3 of article 80 of the Law on tele-radio broadcasting, the Flemish parliament has solved pereformulirovat and to expand an interdiction for political advertising. Thus he has underlined, that 1998 in intentions of legislators included prohibition of any political advertising on radio and the TV, directed on advancement of political parties and separate politicians. The new variant of item 3 of article 80, accepted by Flemish parliament on February, 19th, 2003, provides full prohibition of political advertising: Flemish radio-and telespeakers are not authorised to give to political parties, elective persons and candidates on elections a paid broadcasting time. [127]

In Ireland on the threshold of general election on May, 17th, 2002 the Broadcasting commission of Ireland (VS І) has published general rules which independent private speakers should adhere at illumination of elections.

Rules have been let out in addition to already existing statutes. According to requirements of the Law on broadcasting and TV of 1988, the message on all news should be objective and unbiassed; in these messages there should be no an expression of own sights of the speaker. Besides, in the Law the requirement about fair illumination for all parties of current events (article 9 (1)) contains. The law resolves granting of an aether to political parties, reserving, that broadcasting time allocation should be made so that one party did not have not deserved advantage (article 9 (2)). Any political advertising (article 10 (3)) Is forbidden.

Rules cover such questions, as care of equation of illumination of not political activity of candidates, for example presence on those or other cultural actions, visitings of sports actions, etc. (the Rule № 5). In case of the political programs aimed at acquaintance of spectators with candidates or selective associations, for participation in the same transfer or a broadcast series representatives of all candidates and selective associations should be invited, and invitations should be made beforehand, in reasonable terms (the Rule № 6). Last days before elections and in day of elections any display of candidates or selective associations is forbidden; broadcasting stations are obliged to watch that in their transfers there were no materials which it it would be possible to count capable to affect an outcome of elections (the Rule № 9).

Meanwhile, during election campaign the Irish public speaker RTE has decided to cease transfer by radio of the advertisement of the national organisation on protection of cultural heritage An Taisce in which the criticism of actions of the government in housing construction and preservation of the environment sphere contained. The legislation according to which works RTE, forbids also the advertisements directed on achievement of political ends (the Law on Management on tele-radio broadcasting of 1960, article 20 (4)).145

In Germany in preparation for forthcoming elections in the Bundestag, Conference of directors of Managements of the earths on affairs of mass-media (KDUZ) has published the document in which rules of law concerning the important principles regulating pre-election transfers of political parties on national commercial TV contain.

143 General rules of illumination of elections: General election of 2002, the Broadcasting commission of Ireland, April, 2002, are accessible to the address: http://www.bci.ie/electguide.htm; the Law on broadcasting and TV of 1988 and the Law on Management on tele-radio broadcasting of 1960, both are accessible to the address:

According to article 42.2 of the State contract about an announcement (GDV), to the political parties which are taking part in elections, at observance of certain conditions the reasonable quantity of a broadcasting time is allocated. Taking into consideration the corresponding literature and developed judiciary practice, the document puts at disposal of speakers of the norm, called to provide the equal rights of candidates in the relation: the beginnings, volume, quantity and the schedule of party pre-election transfers, their admissible maintenance and on the questions, concerning the reimbursement and the legal proceedings connected with them.

Private speakers should provide fair structure of pre-election transfers of political parties. Accordingly, KDUZ recommends to them to constitute the appropriate broadcasting plan. Giving a broadcasting time, speakers carry out of the obligation on article 42.2 GDV. In general, the party to which will not manage to use the interval allocated to it for pre-election transfer, has no right to demand from the speaker of granting to it of an additional broadcasting time. і

KDUZ also pays attention that in the majority of the federal earths for the maintenance of pre-election transfers of political parties ■. Responsibility the speaker, and corresponding party (e.g. article 19.6 of the Law about an earth announcement bears not Northern Rhine - Westphalia). Speakers practically have no control over the maintenance, mainly owing to the privileges, to the given political parties according to article 21 of the Organic law of the country. The speaker can refuse translation of party pre-election transfers only in the event that they in the obvious form break general laws, in particular the criminal legislation (e.g., articles 130 and 131 Criminal codes, concerning instigations of the population to wrongful acts and violence images). At the same time, speakers can refuse translation of the specified transfers and in the event that in them the advantage of the person protected by article 1 of the Organic law of the country is not observed.

As to a broadcasting time allocated each party, and quantity of broadcasting intervals given to it concerning parties the principle of absolute equality is applied not, and special system of classification. KDUZ justifies it the reference to article 5.1.2 of the Law on political parties in which it is underlined, that the volume of a given broadcasting time can vary depending on degree of influence of the party. It is calculated substantially on the basis of results of the game on last elections (see article 5.1.3 of the Law about political parties) though in attention a number of other factors is accepted also, such as age of party, quantity of its members and representation of party members in authorities of the earths. Should be taken into consideration and new political groups.

In the document also it is underlined, that according to article 42.3 GDV, a duty to give a broadcasting time for party pre-election ' transfers it is assigned only to national commercial speakers. Regional channels or channels of the federal earths are guided ^ by similar positions of corresponding laws of the earths about mass-media, such as article 24 of the Law of Bavaria about mass-media; in many federal earths z questions of display of party pre-election transfers and broadcasting time allocation on regional channels are given to the discretion of speakers. If speakers decide to give a broadcasting time for these purposes, but are not obliged to do it under article 42 GDV or under other regional laws on granting of a broadcasting time for party pre-election transfers, they also should observe aforementioned principles (e.g. Article 24.3 of the Law of Bavaria about mass-media provides, that «if the speaker during election campaign offers a broadcasting time of party or group of voters, it should to give, on demand, to all other parties or groups of voters which observe the conditions regulating party pre-election transfers during election campaign,

Reasonable quantity of a broadcasting time depending on degree of their influence »). [128]

In the Great Britain section 6 (1) () the Law on an announcement of 1990 imposes on the Commission on independent TV a duty to do all from it depending that each of broadcasting services whom it has granted the licence, observed the requirement that «should not join in its programs of anything such that would offend good taste and rules of decency or could serve as instigation to a crime, lead to disorders or to be offensive for public opinion». In point 5.1 (d) the agreement concluded in 1996 between corporation Bi-bi-si and the profile minister, it is provided, that corporation Bi-bi-si will do all from it depending so that in all programs transferred by it «did not contain anything such, that would offend good taste and rules of decency or could serve as instigation to a crime, lead to disorders or to be offensive for public opinion». ■

Within the limits of illumination of election campaign a number of speakers (Bi-bi-si, ITV, Channel 4 and Channel 5) has received for transfer to an aether кассету*с roller ProLife - the party actively supporting absolute respect by a human life. The cartridge contained «long and very evident» images of various forms of abortions.

Originally, speakers have refused to broadcast cartridge contents; they have dismissed and two altered variants of the pre-election message. Eventually, the pre-election roller of party ProLife has been broadcasted in the form of a sound track against the empty screen.

Legitimacy of realisation by speakers of the judgement according to article 10 (2) became a proceeding subject

The European Convention on human rights in a context of the party pre-election message.

Having cancelled the Appeal court decision on the given case, the chamber of lords has enacted (majority vote), that speakers had the right to refuse transfer initial and the corrected variants of a video topic in which aforementioned images contained. If they have arrived differently, it would lead to the unjustified insult of public opinion. Lord Hoffman has told: «In my opinion... Not in public interests to release party pre-election rollers from the requirement to observe good taste and decency rules - on that only the basis, that their message demands transfer to an aether of offensive materials».147

In Spain in October, 2000 the Supreme Court (Tribunal Supremo) has confirmed the decision of the Central electoral commission (Junta Electoral ' Central) about infringement by Andaluzsky public broadcasting company RTVA (Empresa Publica de Radio at Television de Andalucia) rules ^ appropriate illumination of election campaigns.

In May, 1999, board of directors RTVA has approved the program.і The political telecasts which are going on the air in local election campaign of 1999. According to this program RTVA the free time accessible to parties on TV and radio, should be meted according to number of the deputy mandates received by each party on the previous local elections.

The main opposition party in andaluzskom parliament - People party (Partido Popular) has challenged this program in the Central electoral commission as has considered, that criteria of distribution of free broadcasting time RTVA, whose director is appointed the regional government, favour to the regional correcting

147 Business Regina against the British broadcasting corporation ex parte «association Prolife», [2003] UKHL 23, under the complaint from [2002] EWCA Civ 297, the decision: on April, 10th, 2003, the reasoning: on May, 15th, 2003, are accessible to the address: http://www.parliament.the-stationery -

office.co.uk/pa/ld200203/ldjudgmt/j d030515/bbc-1.htm

Socialist party (Partido Socialista Obrero Espanol). According to People party, at distribution of a free broadcasting time it is necessary to start with poll which on the previous local elections were received by each political party. According to this criterion, the People party should receive 31 percent from total amount of a free broadcasting time, and Socialist party - 33 percent. However at the moment of the People party reference in the Central electoral commission the socialist party has received 47 percent on RTVA, and people party - only 22 percent.

The electoral commission has taken out the People party finding for. RTVA has submitted the reclaiming petition to the Supreme Court of Spain, but the appeal has been dismissed, as the Supreme Court has definitively confirmed the fact of infringement RTVA of rules of appropriate illumination of the selective

V - 148


The analysis of practice of legal regulation of pre-election campaign and political advertising in the foreign states (Belgium, ■ the Great Britain, Germany, Ireland, Spain), allows to say that to questions of giving of the political information in weights the considerable attention is paid. To the materials concerning political advertising, obosnovanno rigid demands as they directly influence formation of public legal consciousness are made.

The organizational procedures connected with pre-election campaign with use of achievements nauchnotehnicheskogo of progress can deserve separate attention. In particular, in such technologically advanced countries as Korea, diligence of local officials, propaganda process has got rather unusual character. The local body on supervision of elections has opened a special "hot" MMS-line where all [129] citizens can send the photos testifying to illegal propaganda of candidates. The pictures made mobile phones with chambers are especially paid compliments: in a mode «here and now». Along with photographic messages text messages, and also calls are accepted also. The local Central Electoral Commission thus can trace by means of the vigilant citizens armed with cellular telephones with chambers even cases of bribery.

Korean operator KTF for the period of pre-election campaign programs a function key of phones of the subscribers on direct connection to «a hot line» Korean Central Electoral Commission - so citizens can send the important information literally one pressing of the button. [130]

As the electoral practice testifies, passing last years abroad election campaigns get more and more confrontational and politically sharp character. Some of them directly mention security of bases of the constitutional system, stimulate growth of offences, social intensity and occurrence of threats of safety of the state. As an example in public authorities of Italy, a victory on last parliamentary elections the facts which have received a wide public resonance of penetration of underworld can serve in Austria to political party of a pronazi orientation "Freedom", extremist performances of the leader of National front of France Li Pan during presidential elections. Thereupon rather actual there is a question of efficiency of legal regulation of pre-election struggle and maintenance of safety of elections.

At international legal level maintenance of safety of election campaigns is regulated by following legal acts, the recognised Russian Federations: the Convention on protection of human rights and fundamental freedoms

(Rome, on November, 4th, 1950) (from amendment and dop. From September, 21st, 1970, on December, 20th, 1971, on January, 1st, on November, 6th, 1990, on May, 11th, 1994), the Declaration on criteria of free and fair elections (Paris, on March, 26th, 1994), the Declaration of the Istanbul meeting at the summit (Istanbul, on November, 19th, 1999), the Charter of the European safety of OSCE (Istanbul, on November, 19th, 1999), the Document of the Copenhagen meeting of Conference on human measurement SBSE (Copenhagen, on June, 29th, 1990). [131]

In foreign countries the legislative basis regulating questions of maintenance of safety of election campaigns is generated answering to norms of international law. There was also a judiciary practice on the given category of the affairs connected with elections.

Existing in the legislation of the foreign states the legal statuses, concerning maintenance of safety of elections, it is possible to subdivide into four groups conditionally:

1) restrictions on penetration of underworld in authorities;

2) an interdiction of creation and activity of political parties and общественныхw the organisations of an extremist orientation;

3) restrictions on intervention in selective process of the foreign.; subjects;

4) fastening in the criminal legislation of corresponding structures of the crimes connected with elections. [132]

For maintenance of safety of the organisation and elections fastening in the legislation, foreign countries of corresponding structures of offences is important. Criminal codes of the foreign states usually carry the crimes connected with elections, to encroachments on bases of the constitutional system.

In the course of elections, depending on a stage of selective process, it is possible to differentiate all offences on:

- The offences connected with registration and the account of voters;

- Offences at cutting of election districts and formation of polling districts;

- Offences during pre-election campaign;

- Offences during financing of election campaigns;

- Offences at a stage of voting and definition of election returns.

At elections abusings freedom of the mass information are not supposed: the propaganda initiating social, racial, national, religious hatred and enmity; appeals to power capture; to violent change of the constitutional system and infringement of integrity of the state; warmongering.

The legislation of the foreign states according to the conventional principles of international law forbids creation and activity of extremist political parties and the public associations propagandising and applying during selective process violent methods. Electoral programmes of the registered candidates, propaganda materials and performances at meetings, meetings, in mass-media should not contain appeals to realisation of extremist activity. Infringement of the specified requirements of the law, as a rule, attracts stay or an interdiction of activity of political party.

Questions of stay of activity and liquidation of political public associations have basic value for protection of bases of the constitutional system. As J.Yudin, in foreign practice in this case specifies creation of political parties displacing given public association or the organisations, first, is forbidden

(Nicaragua, Germany [133]), secondly, the deputies of the representative bodies who are members of forbidden party, automatically lose the mandates (Chile, Brazil), thirdly, the rights of heads and members of the dismissed political party can be limited (Turkey). [134]

By way of illustration it is possible to result an interdiction of activity of Socialist party of Turkey under the decision of the Constitutional court. On November, 14th, 1991 the Prosecutor General of Turkey has addressed in the Constitutional court. Referring to publications of Socialist party and the statement of its heads, including during election campaign on parliamentary elections, he approved, that party activity is directed on blasting of state security, territorial integrity and unity of the nation. In the decision from July, 10th, 1992 the Constitutional court declared Socialist party dissolution. It has entailed confiscation and Socialist party assignation in Exchequer and prohibition to its heads to hold any similar post in the future. [135]

System maintenance безопасности* selective procedures in the USA is worthy. Within the limits of a department of the state control of Management on criminal cases of the Ministry of Justice of the USA, the branch of the crimes connected with elections operates. Its personnel consists of civil employees and is in submission of the Prosecutor General. Functions of the given body are reduced basically to revealing of offences during elections on federal posts and to carrying out of corresponding investigations.

In case of receipt from the citizen of the complaint about an offence connected with elections, the applicant direct to local branch of FBI where to it will suggest to make the statement to the authorised agent. It should contain as much as possible details about character of the noticed offence, to specify concrete persons against whom it has been directed and in the relation of what elective office an offence has been made.

Procedure of an estimation of the facts represented to the Ministry of Justice of the USA as the basis for investigation and excitation of criminal cases, the suffrages connected with criminal infringements, assumes answers to following basic questions: whether contain the presented facts of the basis for suing? Because organisation and elections questions are regulated by the legislation of states, whether probably the given case to consider within the limits of federal jurisdiction? [136]

Almost elective procedures pass in all countries under the judicial authority control. As a result of it there were two models of the control over legality of elections and definition of results of voting. [137]

At use of the first model the given questions enter into jurisdiction of usual vessels. In one countries the disputes, concerning elections, the Supreme Court (Poland, Benin), in others - all degrees of jurisdiction (Ukraine, Uzbekistan) can consider only. The second model provides reference of such questions to conducting bodies of the constitutional justice (France, Bulgaria). For example, in Czechia the Constitutional court is competent to consider questions on the appeal of decisions concerning correctness of election of deputies or senators, and also at occurrence of doubts concerning loss of the passive suffrage and incompatibility of posts (the item "d", "e" Constitution item 87). In republic Seychelles removal of decisions on legality of election of the person is carried to jurisdiction of the Constitutional court on a post of the president of the country (item 51

Constitutions). Thus the right to address with the petition is given voters, the candidates standing on a post of the president, and the general attorney. In Spain the citizen can address in body of the constitutional justice with the statement for right protection in connection with declaration as the candidate on elections or refusal in it (item 9 of the Law from June, 19th, 1985 № 5). Besides the control over selective process bodies of the constitutional justice in a number of the countries (France, Ghana, Seychelles, Bulgaria, Czechia) consider questions on loss of the deputy mandate (for example, in case of occurrence neizbiraemosti, incompatibility). In some countries the body of the constitutional justice considers selective disputes under the first instance (Austria, Hungary, Bulgaria, Kazakhstan, Georgia, France), in a number of others - is perfectly in order


Appeals on decisions of other vessels or parliament.

Thus, the great value in maintenance of safety of elections for stability of the constitutional system, stability of functioning of democratic institutes of the government and local government has presence of the accurate and in details developed standard legal basis, exhaustive image regulating selective process.

Summing up told, it is possible to note the positions reflecting both general-theoretical and practical problems of the given question, to designate some ways of the permission of the given problems, and also to specify positive sides of regulation of the foreign election campaigns which experience could be used in Russia:

1. International legal norms define only the general lines of interstate legal regulation of selective procedures and leave to the national legislator wide enough freedom 137 Legislation on elections in the foreign states. M.: Scientifically-methodical council at the Central Electoral Committee of the Russian Federation, 1998.

The discretion in regulation of questions of the organisation and elections, and also in an establishment of guarantees of protection of suffrages of citizens.

2. The Russian Federation does not use in full given by international law and the developed international practice of possibility for admissible restriction of suffrages, including in questions of a regulation of selective procedures, consistently observing in legislative activity the international obligations taken on. This approach, basically, is justified, as the processes proceeding in the world community, and in particular at level of regional associations of the states, testify to strengthening of a role of international law in questions of democracy and elections. In this connection the Russian legislator, pawning the legal base of domestic electoral institutes, should consider short stories of international law and the legislation of the developed democratic countries, concerning the suffrage and selective process.

3. Norms and the international law institutions regulating selective procedures, represent if to use widespread enough term of foreign lawyers and political scientists, «the live right», that is constantly are in dynamics, flexibly following changes in the international practice. In this connection it is possible to believe, that the given norms and institutes should be corrected proceeding from the purposes and international law principles, as that. With reference to the given question, it is necessary to offer, in our opinion, some additions to the international certificates regulating selective procedures. In particular, today to become actual and demanding the prompt permission a question on streamlining of process of granting of various kinds of "technical" and other help of the international organisations and missions to national states on elections and referenda. It is necessary to insure democracies from any possibility of any intervention of the international institutes which have been not based on an ox of the states of the world community, and from export of "correct" outlook bypassing the democratic procedures of decision-making developed by these community. The offered measure urged to enhance the responsibility the international organisations and missions for concrete political steps and conclusions, and also once again to confirm the international principle of self-determination of the people.

4. Foreign experience of regulation of election campaigns shows, that on the given problem is not developed the uniform approach. Especially sharply there is a question, concerning pre-election campaign carrying out through mass media as they act today as the basic tool of influence on consciousness of citizens. In the separate states the legislator has gone on a way not granting assumptions the telebroadcasting organisations of a paid broadcasting time to political parties, elective persons and candidates (for example, to Belgium). In others - granting of a broadcasting time to political parties depends on degree of influence of party that is defined by results of the previous elections, quantity of party members and age of the party (for example, in Germany, in Spain).

5. In our opinion experience of Ireland looks positive. On its basis it is possible to bring norms which exclude possibility of granting by the telebroadcasting organisation of any advantages on air to political parties and candidates in the Russian selective legislation. So, in particular, followed provide possibility of the balanced illumination by the state organisations of tele-radio broadcasting of not political activity of candidates (presence on cultural, sports actions, etc.). Also, in case of carrying out of round tables or teledebates, in studio where those are spent, all registered candidates or representatives of all political parties participating in elections should be invited.


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A source: Chudov Paul Sergeevich. Konstitutsionno-legal regulation of pre-election campaign in the subjects of the Russian Federation who are in limits Southern federal district. The dissertation on competition of a scientific degree of the master of laws. Stavropol - 2005. 2005

More on topic 3. International legal aspects of standard regulation of pre-election campaign in the modern democratic states.:

  1. 2. Formation of standard regulation of pre-election campaign in Russia.
  2. 1. The Teoretiko-legal characteristic of pre-election campaign and its value in election campaign.
  3. § 2. Kinds of infringements of the legislation on intellectual property in pre-election campaign
  4. § 2. Pre-election campaign as a guarantee of realisation of suffrages of citizens in the Russian Federation
  5. Chapter 2. A konstitutsionno-legal liability of infringement of the legislation on the intellectual Properties in pre-election campaign
  6. Chudov Paul Sergeevich. Konstitutsionno-legal regulation of pre-election campaign in the subjects of the Russian Federation who are in limits Southern federal district. The dissertation on competition of a scientific degree of the master of laws. Stavropol - 2005, 2005
  7. 2. Features of the legislation of subjects of the Russian Federation which is in limits of Southern federal district, about pre-election campaign and practice of its realisation.
  8. § 3. Konstitutsionno-legal responsibility of candidates for Infringements of an order of carrying out of pre-election campaign as a guarantee of the rights of citizens on reception of the information on elections
  9. the Chapter II. The maintenance legal podinstituta - pre-election campaign and practice of realisation of its norms in the subjects of the Russian Federation who are in limits of Southern federal district
  10. § 1. Features of separate elements of structure of infringement Legislations on intellectual property in pre-election campaign
  11. Koval Darya Vladislavovna. INFRINGEMENTS of the LEGISLATION ON INTELLECTUAL PROPERTY In PRE-ELECTION CAMPAIGN In the CONTEXT of KONSTITUTSIONNO-LEGAL RESPONSIBILITY. The dissertation On competition of a scientific degree of the master of laws. Moscow - 2016, 2016