Reporting and Disclosure Requirements and Sanctions for Violations The regulation of campaign finances is ineffective without reporting and disclosure

W dokumencie Guidelines for Reviewing a Legal Framework for Elections (Stron 56-60)

Campaign Finance and Expenditures

11.4. Reporting and Disclosure Requirements and Sanctions for Violations The regulation of campaign finances is ineffective without reporting and disclosure

requirements for candidates and political parties. The legal framework should require periodic reporting, according to reasonable time intervals, of all contributions received and expenditures made by a contestant or in support of a candidate or political party.

The legal framework should indicate whether the reporting period coincides with the election campaign or is extended beyond, taking into account the fact that some expen-ditures may occur before the official start of the campaign. The law should also specify that the use of state resources by an individual candidate or party in political office should be reported as expenditures and paid for by the election contestant.

The legal framework should specifically identify the government agency or body responsible for receiving and maintaining reports on campaign contributions and expenditures. The legal framework should clearly specify where and when such reports should be made available for public inspection. All campaign reports should also be subject to auditing by an appropriate government agency. The legal framework should specify the government agency with authority for audits and the parameters of the audit. The parameters of the audit must be clearly defined and applied uniformly to all reports, in order to prevent biased auditing in favor of or against a particular can-didate or party.

Any penalties for failing to file reports or for filing reports with erroneous information should be clearly stated in the legal framework and should be proportional to the offence. For example, candidates should not be disqualified or be barred from running due to reporting irregularities. Any financial penalty imposed should be proportional and based on the nature and magnitude of the reporting irregularity. Although sanc-tions should not be disproportionate, sancsanc-tions should be severe enough so that they are effective and dissuasive. Additionally, the law must clearly identify the government

58 UN Human Rights Committee, General Comment No. 25, op. cit., note 21, paragraph 19.

59 Guidelines on Political Party Regulation, op. cit., note 46.

agency or body responsible for initiating legal actions for violations, whether by referral to the appropriate prosecutor or as a party to a legal proceeding in a competent court.

Sanctions for substantive violations of campaign finance regulations, like violations for reporting requirements, should be effective, proportionate to the violation and dis-suasive. Criminal sanctions are appropriate for serious violations of campaign finance regulations that undermine the integrity of the election processes.

12.

Observers

A transparent electoral process is a standard necessary to ensure democratic elec-tions. This standard is set out in Paragraph 8 of the OSCE 1990 Copenhagen Docu-ment, which recognizes the importance of the presence of observers, both foreign and domestic, to ensure transparency in the electoral process. The legal framework should provide for the presence of observers, domestic and foreign, and representatives of the media, political parties and candidates. In addition, observers from non-governmental organizations (NGOs) play an important role in enhancing the transparency of the elec-toral processes and should have the right to be accredited to observe. Further, laws regulating the formation and general activities of NGOs and public associations should not contain any unreasonable requirements for acquiring the legal status necessary to qualify to observe election processes.

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The legal framework should provide clear and objective criteria on the requirements for registration as an observer, including applicable deadlines, which governmental authority accredits observers, the requirements to obtain observer status, and under what circumstance observer status can be revoked. The law should be clear that the rights of observers apply to all elections, including local elections and referenda. The law should also establish an expedited process for observers to obtain corrective relief when their rights are denied by an election-administration body, including the right to be registered as domestic observers.

The rights of observers should be clearly and precisely stated in electoral law. A general provision allowing observers to observe the election process is insufficient.

Observers should be given unimpeded access to all levels of election administration at all times, effective access to other public offices with relevance to the election process, and the ability to meet with all political formations, the media, civil society and voters.

The law should provide clear and precise provisions establishing the rights of observ-ers to inspect documents, attend meetings and observe election activities at all levels, as well as to obtain copies of decisions, protocols, tabulations, minutes and other elec-toral documents, at all levels.

Observers should receive appropriate credentials at a time prior to elections sufficient to enable them to organize their activities effectively. An election is a process that includes activities before and after the actual vote. Effective election observation can-not be limited to observing only voting on the day of the election. Observers should continue to have rights of access throughout the entirety of the election processes, including the vote count, the tabulation of results, and the hearing and adjudication of all complaints and appeals by election-administration bodies and courts.

The legal framework should also be clear and precise concerning what an observer may not do, such as interfere with voting, take any direct part in the voting or counting processes, or attempt to determine how a voter will vote or has voted. It is necessary to strike a balance between the rights of observers and the orderly administration of the election processes. However, any requirement that could be onerous to observers and serve to hinder legitimate observation should be carefully considered. This is espe-cially applicable to any provision that attempts to “muzzle” observers or prevent them from reporting or releasing information that has been obtained through their observa-tion efforts.

13.

W dokumencie Guidelines for Reviewing a Legal Framework for Elections (Stron 56-60)