Right to free elections

Vootele Hansen

In October 2013 the seventh council of rural municipality and city council elections took place in Estonia since restoration of independence. I will now compare the local government council elections in Estonia from 1993 to 2013.

Political and institutional developments

The number of local governments has decreased in twenty years – in 1993 there were 254 rural municipalities and cities, in previous elections 215 councils were elected.[1] The number of political parties has also decreased. In 1993 lists were submitted by 12 parties, in 1996 by 19 parties, in 1999 by 14 parties, in 2002 by 13 parties, in 2005 by 11 parties and in 2009 by 8 political parties. Last year six political parties took part in local government council elections, which is two thirds of registered political parties. The following political parties participated in the elections – the Estonian Centre Party (31.9% of the votes), the Union of Pro Patria and Res Publica (17.2% of the votes), the Estonian Reform Party (13.7% of the votes), the Social Democratic Party (12.5%), the Conservative People’s Party of Estonia (1.3% of the votes) and the Estonian United Left Party (0.0% of the votes).[2] Candidates of five political parties were elected. The Estonian Independence Party, the Estonian Greens and the Estonian Liberty Party – Farmers’ Assembly did not participate in the elections. The same situation occurs at local government council elections as at parliamentary elections. Four political parties end up competing amongst themselves. The decrease in number of rural municipalities, self-governing cities and political parties has not brought about decrease in lists of political parties. The list of candidates in 1993 was 106 strong, the longest in 2005 – 726, and in 2013 it was 631. The parties have extended their organisation in rural governments and cities. The number of election coalitions has decreased in comparison to the previous elections. The number of election coalitions was the highest in 1993 (738), the lowest in 2005 (186), when it was unclear before the elections whether the election coalitions would be allowed. There were 324 election coalitions in 2009, and 292 election coalitions in 2013. In the previous year 9393 persons ran as candidates in lists of political parties, and 5290 ran in election coalitions. There were 101 independent candidates. There were 2951 places in councils. That averaged as five candidates per one mandate. This ratio was also the same in 2009. However, in previous elections the ratio of candidates to mandates has been lower. The lowest ratio was at 1993 elections – 2.5. The opportunities to exercise the passive right to vote have remained the same, however, in twenty years the interest in becoming a candidate has increased as has the competition since the number of councils has decreased. The number of electoral committees has decreased. There were 582 of them in 2013, in 1993 there had been 706. The reason for decrease in polling divisions is the more widespread use of new methods of voting. For some voters the polling divisions are now further away than before. The number of electoral districts has also decreased. In 2013 there were 222 electoral districts, in 1996 there were 273 of them. There were 322 electoral districts at 1993 elections, but the Election Act in force then allowed for creating several electoral districts within rural municipalities or cities. The reduction of electoral districts is linked to the decrease in number of cities and rural municipalities. Not forming electoral districts in the merged municipalities, which had been agreed in the merger agreement, has caused tension in residents of municipalities.[3]  However, the distribution of mandates agreed upon in the merger agreement of Kaisma and Vändra municipalities was not legal.

Legislative developments

Eight amendments in the Local Government Council Election Act have come into force since the 2009 elections. All of them have been due to amendments to other acts. The Police and Border Guard Board was formed in 2010 and the word “police prefecture” was replaced with “police authorities” in the Election Act.[4] The act on introduction of euro brought about fines for misdemeanours in euros.[5] The Amendment of the Political Parties Act in 2010 changed the order of announcing the parties to the National Electoral Committee.[6]  The next amendment to the Political Parties Act moved limitations to donations that the election coalitions and independent candidates can accept and the order of submitting election campaign reports from the Elections Act to the Political Parties Act.[7] The limits to political parties, election coalitions and independent candidates have remained the same. Anonymous donations, donations by legal persons, allocating goods and services or making them available on conditions unattainable to other persons, exempting from obligations and wavering of a claim against a political party, election coalition or an independent candidate are forbidden. The new Archives Act specified the requirement of keeping polling lists.[8] The new Civil Service Act states that if a candidate is elected who holds office, which is incompatible with that of a member of the local government council, he or she must within five working days decide and notify the electoral committee of the rural municipality or the city whether he or she wishes to participate in the work of the local government council or continue in the current office and give up the mandate.[9] An official of the same rural municipality or city or an employee of an authority may not be a member of the local government council. Neither can the President of the Republic, a member of the European Parliament, the State Secretary, the Auditor General, the Chancellor of Justice, the County Governor, a judge or a prosecutor be a member of the local government council. The local government officials’ right to run as a candidate is not restricted, but if the official is elected he or she must choose whether to continue as an official or a member of local government council. The restriction precludes the same person acting as the reviewer and the one being reviewed. Since 2005 it is prohibited to simultaneously be a member of the council and a member of Riigikogu. If the person is elected and chooses to continue in Riigikogu, he or she must, just like a member of the government, suspend his or her powers as a member of the council, and he or she is replaced by an alternate member. The new wording of the Military Service Act replaced the words “regular member of the Defence Forces” with the words “active serviceman”.[10] Electronic voting was made more specific along with the Riigikogu Elections Act.[11] The act prescribed forming a separate electoral committee for the organisation of electronic voting, equating the time for electronic voting and advance polls at polling divisions, established auditing of the electronic voting system and gave the voters the opportunity to check whether their electronic votes have been relayed to the electronic voting system. Counting of electronically given votes switched to polling division precision. They used to be counted at electoral district precision in order to guarantee secrecy of elections. Now there is a sufficient number of electronic voters so that the voter and the vote can generally not be connected. However, the candidates are interested in finding out where their voters live. The principles of elections were not altered with this amendment to the law.

If there is a prevalent trend in the past twenty years it would be the expansion of the circle of persons with the active right to vote. In 1993 an Estonian citizen who was 18 at the day of the elections, lived on administrative territory of the appropriate rural municipality or city on January 1st and had been registered to vote had the right to vote. An alien who had been living on administrative territory of a rural municipality or city five years by January 1st also had the right to vote. There is a large number of citizens of other states and persons of undetermined citizenship living in Estonia as a result of the immigration during the Soviet occupation. According to the 2011 census 8.1% of Estonian residents are citizens of other states and 6.5% are of undetermined citizenship.[12] The Election Act gives most of them the active right to vote. In 1996 the requirement for Estonian citizens to live in a rural municipality or city on January 1st of the election year was abolished. The citizen was required to permanently reside in the appropriate city or rural municipality and be registered to vote. In 2002 the requirement for aliens to have been living on the territory of the appropriate rural municipality or city five years by January 1st was abolished. Instead of January 1st the resident of a rural municipality or city had to have been a resident for five years on the day of the elections, the requirement shortened by eight months. Since 2005 the citizens of the EU have the right to vote who also possess a passive right to vote. In 2009 the requirement was abolished, which stated that the alien had to have been the resident of that particular rural municipality or city in order to be registered to vote, the permanent residence permit sufficed. The Chancellor of Justice challenged the distribution of mandates between electoral districts in Tallinn in 2008. In Tallinn city districts are the electoral districts, which differ in the number of residents (15,000 residents in Pirita; more than 114,000 residents in Lasnamäe). Half of the mandates were distributed between city districts and half according to the number of voters. The Chancellor of Justice wished to make elections more proportionate and uniform.[13] The city of Tallinn decided to abolish city districts. An amendment to the act of law passed at Riigikogu prescribed establishing the former electoral districts in Tallinn and the method of distribution of mandates in Tallinn was made the general norm for rural municipalities and cities with several electoral districts – half the mandates are distributed evenly between the electoral districts and half according to the number of voters. In municipalities with several electoral districts the list encompassing the entire rural municipality or city was implemented and the final election results were determined by using compensatory mandates similarly to Riigikogu elections. The modified d’Hondt method was also given up, which could give supplementary mandates to lists, which had received the most votes. The regular d’Hondt method was adopted.

The reduction of the population has not brought about a decrease in the number of voters. There were 1,086,935 voters in 2013; 1,094,317 voters in 2009; and the lowest number of voters in 1996 (879,034). The number of alien voters was the largest in 1999 – a little below 200,000. Ten years ago a generation of a large number of births came of voting age. A decrease in the number of voters is expected in the near future. In addition to voting on the election day and in advance polls, there is also electronic voting, which was added in 2005.

Court practice

An individual, a candidate, an election coalition or a political party may file a complaint with the electoral committee if they think their rights are being breached and apply for an annulment of the decision of the electoral committee or to have it declared unlawful. The decision of the electoral committee can be appealed to the Supreme Court. In 2013 the National Electoral Committee processed 18 complaints. In 1999 the committee processed 10 complaints, in 2002 there were 18, in 2005 there were 25 and in 2009 there were 11 complaints. And now an overview of topics discussed in the Supreme Court during the previous year.

Three complaints were submitted by prisoners to the decision declining to register them as candidates and applying to register as independent candidates. They believe § 5 (6) of the Local Government Council Election Act is in contradiction of Article 3 of the 1st Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms and judgments of the EctHR specifying it, Article 25 of the International Covenant on Civil and Political Rights, the Venice Commission of the Council of Europe code of good practice on elections and Articles 39 and 40 of Charter of Fundamental Rights of the European Union.

They claim the contradiction lies in the fact that persons serving prison sentences cannot be candidates at local council elections. The Supreme Court did not allow the appeal and found that the act was not in contradiction with the Constitution or the international law.
The Supreme Court decided that the council member’s work requires participation in council sessions and other meetings, meeting with the voters, communicating with local entrepreneurs and other activities and meetings, which would require the person to be able to move about freely. The essence of imprisonment includes the person to not be able to move about freely. Therefore, it is not unfounded that persons serving the sentence of imprisonment do not have the right to run as candidates. Articles 39 and 40 of Charter of Fundamental Rights of the European Union provide citizens of other Member States the right to run as candidates for local elections and vote on the same terms as the citizens of the state. These provisions do not regulate the right to vote of imprisoned citizens of the same state. The 1st Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms states free elections at reasonable intervals by secret ballot to choose the legislator. The legislator in Estonia is Riigikogu. This provision does not regulate rural municipality and city council elections.
Neither does the ECtHR practice handle the prisoners’ right to run as candidates at local council elections, but the right to vote.[14]

After the elections a group of prisoners submitted a complaint requesting the election results to be declared invalid and the local government elections to be declared null and void. A convicted criminal who is imprisoned cannot vote at elections. The appellants claimed that the prohibition violated the rights of 2380 persons and is in contradiction with the ECHR, the ECtHR judgments, the EU Charter of Fundamental Rights, the UN International Covenant on Civil and Political Rights and the Venice Commission of the Council of Europe code of good practice on elections. Some of the appellants’ complaints were not reviewed as decisions of electoral committee can be filed a complaint against by the person whose rights are being breached by the decision of an electoral committee that has been made against him. They had not filed a complaint with the National Electoral Committee and therefore the decision of the electoral committee could not have breached their rights. The Supreme Court denied the appeal of appellants who had filed a complaint with the National Electoral Committee. The electoral committee had denied their appeal because of lack of right of appeal, because the electoral committee held the competence to review appeals against actions or decisions of county, Tallinn, Tartu and electronic voting committees. In this appeal none of the decisions or actions of the aforementioned committees was contested. The Supreme Court subsequently gave supplementary explanations regarding possibility of revocation of national election results, requesting preliminary ruling from the ECtHR and effective protection of the right to vote. The Constitutional Review Court Procedure Act along with the Riigikogu Election Act, the European Parliament Election Act and the Referendum Act gives the Supreme Court the jurisdiction to declare the voting results invalid in the entire state, but according to the Local Government Council Election Act the voting results can be declared invalid in a polling division, electoral district, rural municipality or city. § 17 (2)7 of the Local Government Council Election Act gives the National Electoral Committee the jurisdiction to declare voting results invalid in the entire state if the offence influenced or could have significantly influenced the voting results. According to the Supreme Court this provision should be applied in circumstances where the voting results were influenced or could have been influenced significantly by application of a provision that was repealed due to unconstitutionality and the National Electoral Committee is obliged to consider using its competence. The appellants requested the Supreme Court apply for a preliminary ruling from the ECtHR on the question of whether the national law is in compliance with the ECHR and the ECtHR practice insofar as the imprisoned persons do not have the right to vote at local council elections. Requesting a preliminary ruling is not possible according to the current law. A preliminary ruling can be requested from the European Court of Justice, but this does not concern a question of EU law. Requesting an advisory opinion is stated in Protocol No. 16 of the ECHR. Estonia has not ratified this protocol, which is why Estonian court cannot turn to the ECrHR on this basis. The Supreme Court stated that the ECtHR has interpreted Article 3 of Protocol No. 1 of the ECHR, which the applicants rely on, in the context of local council elections. Article 1 of Protocol No. 1 states: “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.” According to the ECtHR the application of this provision is not restricted to the parliament and is to be interpreted according to the role and jurisdiction of the elected organ in the structure of the state. The Supreme Court explained to the applicants that in order to protect their right to vote they should first apply to register to vote. If the rural municipality or city secretary denies the application the complaint can be taken to an administrative court, who must hear the appeal and make a decision within three working days. A preliminary legal protection can also be applied for, which means inscription on the polling list.[15]

The Supreme Court also explained the option of being inscripted on the polling list in its regulation on the application of R. Kalda. The Supreme Court considered it necessary to note that the Riigikogu Election Act, which states that imprisoned persons cannot participate in voting may be in contradiction of § 57 of the Constitution in conjunction with § 11, as they should be interpreted according to Article 3 of Protocol No. 1 of the ECHR, the content of which the ECtHR has specified. In resolution of R. Kalda’s complaint the Supreme Court was procedurally unable to detect the contradiction or declare the provisions of Riigikogu Election Act invalid. According to the court the resolution of a possible contradiction is now the task for Riigikogu.[16]

The election coalition Jõhvi Noored applied for the decision of the electoral committee of Jõhvi rural municipality to be declared invalid as it did not register A. Rõbalko as a candidate, and for the Local Government Council Election Act to be declared in breach of the Constitution insofar as it does not allow an alien resident to run as a candidate for the council. According to the appellants the principle of democracy stated in § 1 of the Constitution and the general elections stated in § 156 should allow all permanent residents of a rural municipality or city to participate in elections. § 3 (2) Charter of Local Self-Government and its Additional Protocol deal with the right to participate in matters of the local government bodies. 4375 of the 12,739 residents of Jõhvi rural municipality are aliens and restriction of their passive right to vote constitutes as discrimination. The appellants also considered the fact that the representative of the appellants was not guaranteed an interpreter at the hearing of the complaint at the National Electoral Committee discrimination. The Supreme Court found no contradiction with the Constitution and denied the application. § 156 (2) of the Constitution mentions the right to vote, not the right to run as a candidate. According to the Constitution the public authority is executed by Estonian citizens and it is not in contradiction of the principle of democracy and the principle of equal treatment that persons who are not citizens cannot run as candidates at the local government council elections. The law makes an exception to EU citizens and is based on the first sentence of Article 22 subsection 1 of the Treaty on Functioning of the European Union, which states: “Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State.” The exception is obligatory for Estonia according to § 2 of the Constitution of the Republic of Estonia Amendment Act. Different treatment of a stateless person and a EU citizen at the local government council elections does not constitute as discrimination of a stateless person. The right to stand as a candidate does not constitute as racial discrimination in the meaning of Article 1.1 of the convention. Article 1.2 of the constitution states: “This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.” The Charter of Local Self-Government obliges states to approve by law the right of its citizens to participate in election of representative body of the local government of his or her residence. Article 1 (4.2) of the Additional Protocol to the charter states: “The law shall also recognise the right of other persons to so participate where the party, in accordance with its own constitutional order, so decides or where this accords with the party’s international legal obligations.” International legislation binding for Estonia does not oblige Estonia to give stateless persons the right to run as candidates at local council elections for rural municipalities and cities.[17]

The complaint was submitted with the electoral committee on conducting elections in Alajõe rural municipality. Before the elections there were people registered as residents of the rural municipality who do not live there. The Supreme Court considered the registering of residents at Alajõe rural municipality. It was concluded that registering a person in the population register and the polling list so that the person can participate in elections and influence election results with his or her voice is not in itself unlawful. However, making entries in the population register and the polling list with the intention of distorting the election results is unlawful. Entering such persons in polling lists who have no actual connection with the appropriate local government unit in order to change the election results in favour of a certain candidate would constitute a case of distorting the election results. It was also noted that the current regulation on making changes in polling list might not be sufficient to avoid distortion of election results. The application was denied and the election results remained in force.[18]

Statistics and surveys

The number of residents voting at local government council elections has increased. 58.0% of voters took part in elections in 2013. The percentage of voters participating was the lowest in 2005 (47.4%), and the highest in 2009 (60.6%). In the last few elections the participation in local government council elections has been equal to that of Riigikogu elections. The percentage of persons participating in Riigikogu elections used to be greater (minimally 57.4%, maximally 68.9%), and participation in European Parliament elections used to be smaller (26.8% in 2009, and 43,9% in 2009). Percentage of persons participating in referendums has been greater (66.8% in 1993, and 64.1% in 2003).

60% of candidates in 2013 were men. The proportion of men among candidates has been larger at previous elections. It was largest in 1996, when 77.0% of candidates were men. The proportion of women was marginally larger in lists of political parties (41%) than in election coalitions (38%). Proportion of women among forerunners of the list of political parties is smaller than further down along the list.[19]

69.0% of those elected in 2013 were men. The proportion of men among those elected in comparison to those running as candidates was also greater in previous years, except in 1996 when 73.4% of those elected were men. The largest proportion of men among those who were elected was in 1993, when it amounted to 76.1%.

The average age of the candidates in 2013 was 46.2, and 47.7 for those who were elected. The average age of candidates has risen a little. It has been lower in previous elections. The youngest average age – 44.6 – was in 1999 (data on the last five elections). The small change in the average age indicates a smooth change of those participating in local politics.

Good practices

Existence of multiplicity of options when voting and at advance polls can be considered an example of a good practice. In 2003 42.1% of voters took part in advance polls, 6.5% voted away from home, 1.5% voted at home, and 21.2% voted electronically. 1.8% voted electronically in 2005, in 2009 electronic voters made up 15.7%. The proportion of those voting away from home has increased – it had been 1.4% in 1999, by 2009 it had risen to 3.8%. New methods of voting have increased the proportion of voters taking part in advance polls – in 1993 they had amounted to 17.5%, in 2009 already to 35.7%. The number of voters has also increased. 630,050 voters took part in election in 2013, 662,813 in 2009 (the largest number of voters), and 461,653 in 1996 (the smallest number of voters). There has been a nearly 200,000 person increase of voters taking part in elections. The proportion of invalid votes has decreased. It was greatest at the 1993 elections (1.9%), at two previous elections it has been 0.7%.

Noteworthy public discussions

One of the topics prior to the elections were the unequal opportunities for political parties receiving money from state budget and the citizens’ election coalitions.[20] All political parties, election coalitions and independent candidates taking part in elections must submit a report of revenues and expenditures of the elelction campaign, but the political parties set the time of election campaigns themselves, and therefore the reports cannot be compared.

In 2013 all the political parties represented in Riigikogu received over a million euros of support from the state budget. The Reform Party received the largest support (1.76 million euros). In addition to the four political parties, the Conservative People’s Party of Estonia and the Estonian Greens also received support – 9578 euros a year. The rest of the political parties and election coalitions do not receive support.[21]

Another topic was the use of administrative resources in election campaigns. Administrative resources are human, financial, material, in kind resources and other non-material resources at the disposal of those holding office and the national officials due to their power over employees of the public sector, financial means and appropriations, access to public establishments and prestige or resources manifesting as public fame because of their position as an elected or a public servant, and which may turn into political support or other forms of support.[22]  Primarily the topic of discussion has been the use of pictures of city officials running as candidates at Tallinn and Tartu elections at notification and advertising campaigns before the elections. Riigikogu’s Special Anti-Corruption Commission passed a petition condemning use of administrative resources.[23]  The political party funding supervision committee decided to order an expert assessment from scholars of University of Tartu on how people actually perceive the publicity campaigns that are carried out in public before the elections.[24] If they are perceived as election campaigns then the publicity of local governments has to be represented in reports of the candidates.

K. Käsper, the Executive Director of the Estonian Human Rights Centre published an article with the proposal to abolish the automatic prohibition of the right to vote for convicted prisoners in election acts. Restriction of the right to vote may be justified as a part of the punishment for certain specific crimes.[25]

In 2013 people’s proposals on political parties, funding, inclusion, elections and politicisation were gathered. The proposals were discussed at Rahvakogu in participation of 500 persons chosen from the population register and the experts. Several proposals made about elections were contradicting one another. Extending the time required to be a resident of a particular locality received the most attention in regards to proposals regarding local government council elections.[26]

The ban on political outdoor advertising during election campaigns was not a part of essential public discussion this time. In 2008 the Chancellor of Justice considered the total ban on outdoor advertising disproportionate and in contradiction of the Constitution.[27] Neither was the topic of ban of election coalitions that had been topical ten years ago, nor the number of electoral districts in Tallinn that had caused a debate four years ago, discussed in 2013.

If there is anything to recommend then it is this: do not change the principle of the Election Act. The acts of law regarding elections are significantly amended when a political power thinks it can benefit from it. By the next elections the others will also have learned to use the opportunities emanating from the amendment, and therefore the change can be benefitted from just once. The election results corresponding to preferences of the voters occur when the voters have got used to the organisation of the elections and know how the voting results translate into election results.