Let me explain "what’s going on with our court cases"—people keep asking about it.
First, a quick recap:
Immediately after the first-round results were announced, our legal team spent three days and three nights taking complaints from election observers.
Violations of a general nature (mainly the mass bribery of voters with food packages, campaigning using city budget funds, and abuse of official position) were considered by the Moscow City Court (a regional-level court of the federal subject).
For a court to invalidate election results, these are three of the four possible grounds under Article 77 of the Federal Law "On Basic Guarantees of Electoral Rights" http://www.consultant.ru/document/cons_doc_LAW_148886/?frame=еи17
Some, not without reason, consider this speech by Sergei Sobyanin to be extremist.
and in that case, all four grounds for annulling the election results are present.
As you may recall, we had 952 court complaints.
One went to the Moscow City Court, and 951 to district courts.
The hearing at the Moscow City Court could rival only the looting of the Moscow budget in terms of speed. The court found not the slightest grounds to question witnesses, request documents, or grant any of our other motions. After that, the Moscow City Court promptly found no grounds to annul the election results either.
That ruling has not yet entered into legal force, and we are now preparing an appeal.
But in addition to the general violations, we also gathered information on individual precinct election commissions (UIKs). Most of it involves various kinds of fraud with home voting, plus a few precincts remembered for especially hardcore abuses.
For example, Precinct Election Commission No. 1590 stood out: observers were not allowed into the polling station, the enlarged protocol form was not filled out, copies of the protocol were not given to commission members, and at 6 a.m. unidentified unsealed bags of ballots were brought to the station for a recount.
Or take the Timiryazevsky District Territorial Election Commission (TIK), for example. They approached home voting seriously and prepared what appears to be, based on the results of phone calls, a detailed document on which pensioners would not be taking part in the vote and why—violating Clause 2 of Article 66 of the Federal Law “On Basic Guarantees of Electoral Rights,” which states that the initiative to vote at home must come from the voter. http://base.consultant.ru/cons/cgi/online.cgi?req=doc;base=LAW;n=148886
At the same time, as the document shows, the pensioners were casually asked whether they needed anything (see, for example, “according to her son, she doesn’t need anything”).
Purely by chance, a week before the election, they surrounded voters with care and attention:
If we won roughly 70% of those 951 cases (depending on the number of voters at each precinct), we could use that as grounds to invalidate the first-round results.
The first news from the courts was that some of our filings had suddenly been stolen from the postal service vehicle delivering them to court.
The filings that did make it to court were consolidated into 34 cases, after which there was a brief lull (and our lawyers finally got a little sleep).
As soon as the Moscow City Court rejected us, all the district courts immediately sprang into action.
In half the cases, they do not notify us about hearings at all. Or they notify us—attention!—on Twitter:
(A life hack for anyone planning to apply to the Chertanovo District Court: we recommend filing your lawsuit via Twitter.)
But that is trivial compared with the fact that judges are not merely denying all our motions—they are refusing to consider our filings at all, en masse, citing Article 222 of the Civil Procedure Code.
The key to applying Article 222 of the Civil Procedure Code is that an identical case must already be pending before some court—that is, the subject matter, grounds, and parties to the dispute must all coincide.
http://www.consultant.ru/popular/gpkrf/8_21.html
But in our case:
the subject matter of our filings does not coincide
The voting results at a precinct and the overall election result are not the same thing.
Clause 4 of Article 26 of the Civil Procedure Code provides that challenges to decisions of regional election commissions fall under the jurisdiction of the court of the relevant federal subject.
http://www.consultant.ru/popular/gpkrf/8_3.html
That is why in the Moscow City Court we sought annulment of the election results for the region as a whole: we were challenging the decision of the Moscow City Election Commission approving those results despite violations by candidate Sergei Sobyanin. At the district court level, by contrast, we are challenging the voting results at 951 specific precinct election commissions, where violations were committed directly on election day (mostly by commission members).
In addition to the Civil Procedure Code, the Plenum Resolution of the Supreme Court of the Russian Federation dated March 31, 2011, No. 5, “On Court Practice in Cases Concerning the Protection of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum,” also applies here.
http://www.consultant.ru/document/cons_doc_LAW_125988/
That Supreme Court resolution states that a regional-level court may not hear cases that fall within the jurisdiction of a district court and must transfer them to the proper court.
Under that Supreme Court resolution, the Moscow City Court could not, even if it wanted to, hear first-instance cases concerning violations at the precinct commission level; it would have had to transfer them to the district courts.
the grounds in the filings do not coincide either
The subject matter is different (see above), so the grounds differ as well. A candidate may violate a huge number of legal requirements during the campaign period (for example, by bribing voters), while the voting procedure itself may be conducted without violations (because bribery already ensures the desired result). And vice versa: a campaign may be run without violations, while ballot stuffing is organized during home voting.
The grounds for our filing in the Moscow City Court were voter bribery, abuse of official position in access to the media, violations of personal data law, and other such issues—and on that basis we sought to have the election results as a whole declared invalid. In the district courts, our filings are based on violations committed at precinct commissions by commission members—in particular, the absence of home-voting registers, forged signatures of home voters, all manner of violations in vote counting, and so on.
the parties in the Moscow City Court and the district courts do not coincide
In the Moscow City Court, the interested parties were the Moscow City Election Commission and candidate Sergei Sobyanin (no precinct commissions in sight).
Here is a quote from the Moscow City Court ruling:
In the district courts, the interested parties are representatives of the precinct election commissions.
Here is a quote from the Ostankinsky District Court ruling:
After all, what is being challenged is not the election result (the decision of the Moscow City Election Commission), but the voting results at individual precincts. That is why the precinct commissions—not the Moscow City Election Commission—are the interested parties in our filings. Representatives of those precinct commissions are the ones summoned to court. Precinct commissions fall under the jurisdiction only of Moscow’s district courts, and as noted above, this follows unambiguously from Chapter 3 of the Civil Procedure Code, which deals with jurisdiction.
Even without getting into all this legal alchemy, the refusal to consider our filing under Article 222 of the Civil Procedure Code can be challenged by the law of transitivity.
If we follow the district courts’ logic—that in every case the parties, subject matter, and grounds coincide with those in the Moscow City Court—then it follows that they also coincide with one another in every district-level case.
That is obviously not true. But if we assume it is, then it turns out that the courts cannot hear our cases because they are hearing our cases.
It would also follow that challenges to precinct voting results could not be pursued in parallel in two or more courts—that is, all 951 precincts would have to be challenged one after another.
That would also contradict existing judicial practice. For example, after the 2011 parliamentary elections, representatives of the Communist Party of the Russian Federation (KPRF) likewise litigated in the Supreme Court (because those were federal-level elections) while simultaneously challenging voting results at 1,600 precincts in district courts.
http://www.kommersant.ru/pda/news.html?id=1831626
Moreover, if one believes that the subject matter, grounds, and parties coincide in every case, then to invalidate the voting results across all of Moscow it would be enough for us to win a case concerning just one precinct.
The courts are churning out such refusals at lightning speed. Take the Ostankinsky District Court, for example: Judge L.V. Shokurova held the hearing in a quick stand-up format in 29 minutes. Here is the transcript:
...
In that record-short time, Judge L.V. Shokurova managed not only to announce the composition of the court, explain everyone’s rights and duties, hear all parties, and complete the other required formalities, but also to examine and determine the coincidence of subject matter, grounds, and parties on the basis of—attention!—a printout from the Moscow City Court website about the consideration of Alexei Navalny’s filing:
The Zyuzinsky District Court, Judge E.V. Maksimova, particularly distinguished itself by its ingenuity.
Translated into plain English, this means roughly the following: the Moscow City Court ruling has not yet entered into force, so unfortunately we cannot refuse to hear the case under Article 248 of the Civil Procedure Code (our comment: Article 248, like Article 222, is inapplicable because the subject matter does not coincide; see above). But we really do not want to hear it, so let’s drag in Article 222 instead.
So, to sum up: not a single district court in Moscow has considered even one of the 951 filings concerning election violations.
We are appealing all of this, of course (jokes aside, it will be very interesting to see how the Supreme Court wriggles out of contradicting its own Plenum resolution).
Obviously, you are now thinking: "the ending is a little predictable." We have that feeling too, but we promised that we would defend the voters’ stolen votes to the very end, and we are going to keep that promise.
While I have the chance, I want once again to thank our campaign’s legal team—these wonderful people with red eyes and dazed looks, peering at everyone from behind piles of papers and filings, periodically dozing off and muttering in their sleep things like: "Your Honor, I strongly object!" Someday, all of you will get some rest.