On October 17, IFES held a panel at the American Bar Association’s (ABA) International Law Section Fall Meeting in Miami, Fla. IFES Regional Director for Europe & Asia Chad Vickery chaired and moderated the panel, entitled Election Crime and Punishment: The Search for International Standards for Investigations and Prosecution in Election Cases.
Speakers included Commissioner Christian Robert Lim of the Philippines Commission on Elections; John Hardin Young, counsel to Sandler, Reiff, Young & Lamb; Gerardo de Icaza Hernández of Democracy Building International; and IFES legal specialist Typhaine Roblot.
Participants presented their findings on principles and standards for electoral investigations and engaged the audience in a discussion about best practices and the challenges of meeting established standards.
Three principal findings emerged from the panel discussion.
First, the threat of both real and perceived bias exists in investigation proceedings around electoral claims. Such perceptions of bias may be based on the possibility that strong pressures could be applied to investigators due to the political nature of election cases. This is particularly relevant for investigators from the executive branch. The risk of partial adjudication or abuses of administrative resources is even higher when investigators from the executive branch are handling allegations of electoral crimes or violations in which the executive branch may be a defendant. To confront this potential conflict of interest, investigators must act with integrity, objectivity and a high level of competency. States should ensure that there is a system in place to monitor and hold investigators accountable for malpractice and abuses of power.
A credible adjudication process also requires investigators to disclose any perceived or real conflicts of interest in a timely manner; make every effort to corroborate findings in writing, based on substantiated facts and not hearsay, assumptions or suppositions; maintain and retain proper documentation to justify initial findings and recommendations; ensure consistent implementation of procedures; and conduct investigations that are reasonably transparent and that give proper notification to relevant parties and protect the rights of the accused.
Investigators who follow these and other requirements of their position should, in return, be protected from retaliation by the state (e.g., dismissal without cause or politically motivated discipline).
Second, in order to meet tight deadlines for investigation and resolution of allegations of electoral crimes and violations, states should develop and implement streamlined, accelerated systems that protect the due process rights of accused parties. For this purpose, prior to the election, states must establish and make public an effective triage process that ensures that investigators can pursue legitimate claims and quickly dismiss frivolous or clearly unfounded claims. This requires clear and consistent definitions, documented in writing, of the types of crimes and irregularities likely to be alleged and the elements that plaintiffs must prove to substantiate their claims.
Investigators must receive adequate training in identifying the different priority categories in order to efficiently implement this triage methodology. To guarantee the expeditious adjudication of election cases, short deadlines should be set in the law or procedures for filing, responding to and adjudicating complaints and appeals.
However, ensuring that proceedings are quick should not come at the expense of fairness.
Finally, as allegations of electoral crimes and violations emerge, investigators must consider what types of remedies are available for the plaintiffs and the state. Determining the seriousness of the alleged violations, the effect on the results and the likely remedy (criminal or administrative) before beginning the investigation will guide investigators to determine the type of investigation, appropriate standard of evidence, burden of proof, timeline for investigation and applicable due process rights.
For example, the highest standard of evidence and due process protections will apply if the chosen remedy is a criminal action against an individual. If the remedy does not impact the outcome of the election, investigators will have more time to complete their inquiry. However, in cases of administrative actions that can impact the outcome of an election, the standard of evidence threshold will likely be lower and the timeline more compressed.
To help state actors adhere to best practices, IFES is developing a handbook with detailed guidelines for effective investigative processes and tools to strengthen prosecution in election cases. This publication will complement IFES’ Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections with a focus on international standards and best practices for investigative processes. Case studies will illuminate these concepts and underscore the need for coherent and enforceable laws and procedures for the resolution of election grievances. This IFES study will cover investigations of election violations, whether administrative or criminal, throughout the course of the election cycle – prior to, on or after Election Day.