Decisive Powers of State Commission in Electoral Funding Oversight

1. 16th European Conference of Electoral Management Bodies “Election Dispute Resolution” Selected decision-making powers of the State Commission for Elections and Oversight of the Funding of Political Parties with a particular focus on an interpretation of the legal definition of the election campaign and consequences stemming from violations of the election moratorium Speaker: Prof. JUDr. Mojmír Mamojka, PhD.

2. 16th European Conference of Electoral Management Bodies “Election Dispute Resolution” Preparing the topics for today’s presentation: Clear powers of the State Commission v/s controversies

3. 16th European Conference of Electoral Management Bodies “Election Dispute Resolution” Structure of the Presentation: 1. Interpretation of the Legal Definition of the Election Campaign 2. Consequences Stemming from Violations of the Election Moratorium 3. Modification of the Amount of Financial Penalties Set by Law and Imposed by the Commission

4. 16th European Conference of Electoral Management Bodies “Election Dispute Resolution” 1. Interpretation of the Legal Definition of the Election Campaign

5. Interpretation of the Legal Definitionof the Election Campaign The Election Campaign is defined in: Act no. 181/2014 Coll. on the Election Campaign and on the Amendment of Act no. 85/2005 Coll. on Political Parties, as amended (“Election Campaign Act”)

6. Interpretation of the Legal Definitionof the Election Campaign The Definition of the Election Campaign (contained in Section 2, Part 1, of the “Election Campaign Act”): An Election Campaign for the purposes of this act is any activity that is usually paid for and is aimed at promoting his/her activities, goals and programme in order to obtain a public office. (e.g. a member of the National Council or President)

7. Interpretation of the Legal Definitionof the Election Campaign The Definition of the Election Campaign (contained in Section 2, Part 1, of the “Election Campaign Act”): An Election Campaign for the purposes of this Act is any activity that is usually paid for and is aimed at promoting his/her activities, goals and programme in order to obtain a public office. (e.g. a member of the National Council or President)

8. Interpretation of the Legal Definitionof the Election Campaign The Definition of the Election Campaign (contained in Section 2, Part 2, of the ,,Election Campaign Act“): The Election Campaign begins on the day when the decision to call an election is published in the Collection of Laws of the Slovak Republic (hereinafter referred to as the “election decision”) and ends 48 hours before the Election Day.

9. Interpretation of the Legal Definitionof the Election Campaign Resolution no. 13/3/11 / 2 – March 3, 2016: The ban on posting Internet content after the Election Campaign (i.e. during the Election Moratorium) applies to all kinds of information and services that are usually paid for (e.g. “banners”). This means that publishing free posts via social networks is not considered to be an Election Campaign.

10. Interpretation of the Legal Definitionof the Election Campaign Resolution no. 44/5/6 – March 16, 2019: Uploading a video on www.youtube.com that is not paid foris not a violation of the Election Moratorium, because it’s not an Election Campaign.

11. Interpretation of the Legal Definitionof the Election Campaign Resolution no. 49/4/13 - 25.05.2019: Publishing a non-sponsored blog post is not an Election Campaign, therefore it’s not forbidden even 48 hours before the election day (i.e. during the Election Moratorium).

12. Interpretation of the Legal Definitionof the Election Campaign Suggestion No. 1 and No. 2 to the Discussion: What is the legal definition of the Election Campaign in your country? Compare it to the Slovak legislation. 2. Is there any need to define the Election Moratorium considering the power of social networks today?

13. Consequences Stemming from Violations of the Election Moratorium 2. Consequences Stemming from Violations of the Election Moratorium

14. Consequences Stemming from Violations of the Election Moratorium The decision-making mechanism of the State Commission is defined in: Act no. 180/2014 Coll. on the conditions relating to the exercise of the electoral right and on the amendment of certain acts, as amended (“Electoral Right Act”)

15. Consequences Stemming from Violations of the Election Moratorium The Definition of the “Decision-making Mechanism” (contained in Section 15, Part 2, of the “Electoral Right Act”): If the State Commission votes on whether the election moratorium was violated, three-quarters of the votes of all members of the State Commission are needed to approve the resolution.

16. Consequences Stemming from Violations of the Election Moratorium The Definition of the “Decision-MakingMechanism” (contained in Section 15, Part 2, of the “Electoral Right Act”): If the State Commission votes on whether the election moratorium was violated, three-quarters of the votes of all members of the State Commission are needed to approve the resolution.

17. Consequences Stemming from Violations of the Election Moratorium The State Commission has 14 members not even 10 votes are enough to impose a penalty for violating the Election Moratorium (which is approximately 71% of the Commission’s overall “decision-making capacity”) 4 members (that means about 29% of all votes) are enough to prevent a penalty from being imposed.

18. Interpretation of the Legal Definitionof the Election Campaign Suggestion No. 3 to the Discussion: What is the “Decision-making Mechanism” (when it comes to a potential violation of the Election Moratorium)in your country? Compare it to the Slovak legislation. 2. Is there any need to reduce the number of votes required to impose a financial penalty to a simple majority? (i.e. 8 votes out of 14)

19. Interpretation of the Legal Definitionof the Election Campaign 3. Modification of the Amount of Financial Penalties Set by Law and Imposed by the Commission

20. Modification of the Amount of Financial PenaltiesSet by Law and Imposed by the Commission Strong Tool (No. 1) of the Commission when the Election Moratorium was violated Financial Penalties on a scale from 30,000 € to 300,000 € (Section 19, Part 1, “Election Campaign Act”)

21. Modification of the Amount of Financial PenaltiesSet by Law and Imposed by the Commission Strong Tool (No. 2) of the Commission when a political party has received a donation of more than 100 € other than by transferring the money from a bank account to a bank account Financial Penalty The State Commission will impose a fine on the political party that is worth double the amount of the donation if the political party has received this donation other than by a bank transfer. (Section 31, Part 11, “Political Parties Act”)

22. Modification of the Amount of Financial PenaltiesSet by Law and Imposed by the Commission According to the Constitutional Court of the Slovak Republic and the Supreme Court of the Slovak Republic: Loopholes or other shortcomings in laws may also occur in countries with modern legal systems. Governing authorities are entitled to remove these flaws with their correct interpretation. Decision of the Supreme Court of the Slovak Republic (file no. 4Szo/72/2010) referring to the resolution of the Constitutional Court of the Slovak Republic No. III. US 274 /07-13 of October 27, 2007

23. Modification of the Amount of Financial PenaltiesSet by Law and Imposed by the Commission Suggestion No. 4 to the Discussion: What is the scale of financial penalties in your country? Are the authorities in your country allowed to reduce the financial penalties set by law?

24. 16th European Conference of Electoral Management Bodies “Election Dispute Resolution” Questions?