If the CEC does not schedule a re-voting today, the party will be the victim of a violation

Former vice-chairman of the RA Investigative Committee, doctor of law, professor, honored lawyer of RA Artur Ghambaryan writes on his Facebook page.

” 1. About judicial acts in the case of the “Prosperous Armenia” party

I got acquainted with one of the judicial acts in the PAP case, and I think that the reasoning of the RA Administrative Court is correct.
Article 48.1 of the RA Electoral Code (EC) forbids the Central Election Commission (CEC) to review “decisions made based on election results”, but this norm is not applicable to the decision made by the electoral district commission under the regulation of Article 73 of the RA Election Code, because unlike local government elections, in the case of RA NA elections, electoral district commissions do not have the authority to summarize the election results, therefore they do not make a decision to summarize them. In this case, Article 73 of the Law of the Republic of Armenia obliges to adopt an interim decision (assessment of the impact of violations), which in the sense of Article 48.1 of the Law of the Republic of Armenia is not a “decision made by the results of the elections”, therefore the CEC has the right to review it.

The decision adopted as a result of the RA National Assembly election (on the election of the National Assembly and distribution of mandates) is adopted by the CEC, which can be challenged in the RA CC.

Moreover, on the basis of Article 48.1 of the Law of the Republic of Armenia, the CEC invalidating the results of the given precinct is not a final solution in itself, but is a basis for making further decisions at the summary stage.

2. About re-voting

The following follows from the joint analysis of Articles 95 and 101 of the RA EC. when the CEC comes to the conclusion at the stage of summarizing the results that violations occurred during the elections, the legislator gives it two and only two legal options, the choice between which is made based on the nature of the violation;
a) To schedule re-voting in individual precincts. The CEC is obliged to order a re-voting if it finds that the violations could have affected the election results, and at the same time is convinced that it is possible to correct the consequences of the violations (Article 101, Part 1, Article 95, Part 1, Clause 3).

b) declare the NA elections invalid and re-vote the elections; If the CEC finds that the violations could have affected the results, but their consequences cannot be corrected by re-voting in individual precincts, then it is obliged to declare the NA elections completely invalid and to appoint a full re-voting (Article 101, Part 1, Article 95, Part 1, Clause 4).
Thus, if at the stage of summarizing the results, the CEC concludes that the invalid results of the contested precinct could have affected the distribution of mandates, then it will be obliged to order a re-voting or to completely invalidate the elections.
All other actions of the CEC (for example, invalidating the results of only certain precincts without re-voting) are outside the scope of these two possibilities and are therefore considered illegal and contradict one of the fundamental maxims of law (justice): “an appeal cannot worsen the condition of the appellant” (non reformatio in peius).
According to this maxim, the superior body or court, as a result of examining the complaint submitted by the appellant, cannot worsen his situation, that is, make a decision that will have a worse result for the appellant than the situation before the appeal. The essence of this maxim is that the citizen (organization) has the opportunity to appeal the legal act without fearing that his situation will worsen as a result.

In the context of this case, if the CEC, after reviewing the results of the polling station, does not order a re-voting today in the preliminary stage of summarizing the election results, then the party that is the victim of the violation will be in an unfair situation. on the one hand, it will be confirmed that a violation has occurred, on the other hand, it will lose the votes it received in the given precinct, which will significantly worsen its situation before the appeal.
Thus, the legislator, by endowing the CEC with the power of revision in Article 48.1 of the RA EC, and by defining the duty to appoint a re-voting in Articles 95-101, prevented this very unfair result.”

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