Foreign experience in determining the validity of the will of the people

Kravchenko Oleg Aleksandrovich PhD in Law Associate Professor; Department of Public Law Disciplines; MIREA 78 Vernadsky str., Moscow, 119454, Russia sf-mka-spb@yandex.ru Other publications by this author

The majority of the world's population lives in states that declare themselves democratic, both with a republican form of government and with a constitutional monarchy using various forms of direct democracy through voting, and it would be correct to take into account the experience of foreign countries in the field of the authenticity of the will of the people when voting on direct forms of democracy.

From this point of view, the experience of states with a similar form of government, namely the federation, will be noteworthy for Russia, and here, it seems, the experience of Germany is important.

Her experience in the organization and functioning of the democratic system is interesting not only by the presence of a form of government in the form of a federal state, but also by the fact that Germany has developed an economic and political system, as well as a party system formed under the influence of elections.

At the same time, the German experience is also important because Russian law traditionally tends to the Romano-German legal family to which Germany belongs.

As V.I. Kuzmenko notes with regard to the Russian legal system, it: "by objective and formal signs, through evolutionary interaction and continuity, tends to the Romano-German legal family" ^[1].

Even those authors who recognize the originality of Russian law do not associate it with the Anglo-Saxon legal family. Thus, according to R. Leger: "It can be assumed that the law of Russia will preserve its identity for a long time, which will prevent it from joining the family of Romano-Germanic systems" ^{[2, 233]}.

A.H. Saidov refers the Russian legal system to the Romano-German legal family, emphasizes that "it undoubtedly belonged to the Romano-German legal family both in pre-reform and post-reform times" ^{[3, 365]}.

In addition, at the federal level, the procedures for elections to the parliaments of Russia and Germany are very similar. According to I.R. Yegorkina: "the similarity of the Russian and German electoral systems lies in the fact that the voter has two votes to his credit, and also that voting goes in two directions, both for the candidate and according to party lists" ^[15].

Thus, the Federal Election Law in § 1 notes: "(1) 1. The German Bundestag consists of 630 members. 2. They are elected by universal, direct, free, equal and secret ballot by Germans who have the right to vote. (2) 1. The principles of proportional representation apply to elections to the German Bundestag. 2. Each voter has two votes: the first vote in the elections in accordance with the proposals for elections by districts and the second vote in the elections in accordance with the proposals for elections to land plots for which the parties admitted to the elections nominate their candidates (land lists)" (https://www.buzer.de/BWahlG.htm (access date 30.08.2023)).

The legal literature has also repeatedly emphasized both the influence of German procedural thought on the domestic process, and the fact that it is an integral part of the subject of the science of domestic procedural law (Konev D.V. Recognition and enforcement of foreign judicial acts in civil and commercial cases in the Federal Republic of Germany: Abstract. Dissertation of the candidate. Jurid. sciences'. Yekaterinburg, 2008. p. 4. Koncheva V.A. Judicial review of cases arising from relations related to the exercise of electoral rights in Russia and Germany. The author's abstract. Dissertation of the candidate. Jurid. sciences'. Moscow, 2007. p. 3.) ^[4].

It is procedural law that represents a set of rules of conduct in the field of both organizing voting and determining election results, as well as a procedure for judicial protection in case of distortion of the will of the people in direct forms of democracy.

According to the researchers: "The classical German legal doctrine was often a certain guideline in the legislative regulation of individual legal institutions in Russia" (Salenko A.V. Freedom of peaceful assembly in Russia and Germany : a comparative constitutional and legal study : abstract of the dissertation... Doctor of Law. Yekaterinburg, 2023. p. 9.).

Despite the fact that the legal systems of Germany and Russia use different approaches in organizing the protection of citizens' electoral rights, domestic researchers consider the option that finds consolidation in Germany to be "the most favorable for the perception of the domestic legal system" ^{[5, 26]}.

In addition, the German experience is also interesting because constitutional justice in this state is considered authoritative in Europe ^[6], and its jurisdiction includes, among other things, the trial of cases related to the distortion of the will of citizens in direct forms of democracy.

In those foreign countries where elections are held, as a rule, the same problems are observed related to determining the reliability of the will of citizens. Thus, according to the researchers: "The analysis of the main problems related to the electoral law and electoral systems of the last century allows the author to conclude that such then were: election fraud, electoral geometry (gerrymandering), absenteeism, part of electoral qualifications (for example, property) and objective disadvantages of majority and proportional electoral systems related to the inevitable "loss of votes" of voters. In the XXI century, they were also supplemented by registration of citizens to participate in elections, and early voting, and electronic systems for both voting and counting, and election financing, and the actual violation of the principle of secret ballot" ^[13].

Thus, these circumstances entail the need to use a comparative method in legal research in Germany and Russia. After all, as correctly noted, K. Zweigert and H.Ketz: "legal research acquires a truly scientific character only when it rises above the research of any national system" (Zweigert K. Ketz X. Introduction to comparative jurisprudence in the field of private law. M., 1995. C. 11).

The comparative method allows us to look at the usual state-legal phenomena and processes from a different angle and from the point of view of the legislation of another country, which more fully reveals the features of the object of research.

In this regard, opportunities are opening up for using foreign experience for the development of a particular legal institution in our country. Then, taking into account the peculiarities of the national legal system, it is possible to apply the method of legal regulation to formulate proposals aimed at improving legislation.

Hence, researchers often turned to the study of the German experience, including in the field of regulation of constitutional and legal relations and the implementation of the ideas of constitutionalism and democracy in Germany.

Such authors as R. Leger, R. David, K. Joffre-Spinosi, B.A. Strashun and V.V. Maklakov paid attention to the study of national legal systems in general.

A.G. Orlov, I.A. Rakitskaya, Yu.I. Leibo, M.V.Baglay and L.M. Entin devoted their works to the study of the experience of legal regulation of the procedure for converting the will of the people into political decisions in the aspect of existing modern electoral systems.

The possibilities of using the German experience in relation to legal means of protecting citizens' electoral rights are revealed in the works of A.V. Serebrennikova and I.S. Vlasov.

At the same time, the issues of studying the German experience of regulating constitutional legal relations through the prism of identifying the reliable expression of the will of the people and the implementation of legal means aimed at ensuring the correctness of voting results in direct forms of democracy have been ignored by researchers.

Therefore, theoretically, the relevance of the study lies in studying the German experience through the prism of the thesis that voting only meets the criteria of constitutionality when the official result of the vote reflects the authentic expression of the will of the people.

In turn, in practical terms, the relevance of the study lies in identifying examples of distortion of the will of the German people in the implementation of direct forms of democracy, as well as considering legal means to counteract these distortions.

Democracy and the identification of the will of the people in Germany

Germany has the Basic Law of the Federal Republic of Germany dated May 23, 1949 (Constitutions of foreign countries: Great Britain, France, Germany, Italy, the European Union, the United States of America, Japan: textbook. M.: Infotropik Media, 2012. 640 p. 173.) (hereinafter – the Constitution of Germany).

The German Constitution qualifies Germany as a democratic state.

Thus, Article 20 of the German Constitution establishes that Germany is a democratic state where all state power comes from the people. The same article establishes the forms of expression of the power of the people in the form of voting and free elections and through special legislative, executive and judicial bodies.

It turns out that the German Constitution, on the one hand, identifies direct forms of expression of the power of the people, namely through voting and elections, on the other hand, indirect forms of expression of the power of the people, namely through the legislative, executive and judicial authorities.

Hence, the legislative power is represented by the Bundestag and the Bundesrat, the executive power by governments and administration, and the judicial system, in turn, by the courts.

The basic principles of electoral law are enshrined at the constitutional level: universal, direct, free, equal and secret voting. They operate at both the federal and regional levels.

By virtue of paragraph 1 of Article 38 of the German Constitution, "Deputies of the Bundestag are elected by universal, direct, free, equal and secret ballot. They are representatives of the whole people, not bound by orders and instructions and subject only to their conscience."

At the same time, a feature of the forms of direct democracy in Germany is that in legislation at the federal level, a referendum is possible only in certain legal situations, namely only to the extent that it is expressly provided for by the German Constitution ^[7], whereas at the level of the lands (subjects of the federation), the procedure for holding it is often fixed by law.

Currently, the German Constitution provides for only one case of holding a referendum at the federal level. This is a realignment of the federal territory.

Thus, according to Part 2 of Article 29 of the German Constitution, measures for the new division of the federal territory are carried out through a federal law, which requires approval by referendum, but taking into account the opinion of the interested lands.

As in other countries promoting a democratic system, in Germany the question arises about the correctness of the realization of the will of the people through these forms of democracy.

A significant role in the democratic system of Germany, in transforming the will of the people into state power, is recognized by political parties.

Thus, Article 21 of the German Constitution establishes that parties contribute to the formation of the political will of the people.

The meaning of this constitutional provision is revealed in the German Law on Political Parties of July 24, 1967 (the Law on Political Parties (as amended by the announcement of 01/31/1994 (Federal Legislative Bulletin I p. 149) was last amended by the law of 07/10/2018 (Federal Legislative Bulletin I p. 1116)).

According to section 1 of the German Law on Political Parties of July 24, 1967, political parties, with free, constant participation in shaping the political will of the people, perform the public task assigned to them in accordance with the Basic Law and guaranteed by it, as well as parties are a constitutionally necessary component of a free democratic basic order.

This rule of law recognizes political parties as constitutionally necessary tools for forming the political will of the people and gives them constitutional status, also applies not only to the federal sphere, but also directly to the lands (subjects of the federation) (Decision of the Constitutional Court of Rhineland-Palatinate VGH A 22/07 VGH O 27/07 // www.judicialis.de/Oberverwaltungsgericht-Rheinland-Pfalz_VGH-O-27-07_Urteil_27.11.2007.html (04/03/2023)).

As the researchers note: "There are about 70 parties and electoral unions in Germany" ^[14]. Such a large number of political parties makes it possible to develop competition and competitiveness between political forces, and voters can be more consistently involved in the exercise of people's power through direct forms of democracy.

In Germany, the organization of power in the lands is largely not regulated by the German Constitution.

It is defined in the constitutions of the lands, between which there is quite a significant similarity in this matter, although there are, of course, more or less significant differences.

The peculiarity of Germany is that all subjects of the federation are states that independently adopt their own constitutions, the approval of which by federal authorities is not required, unlike Switzerland (Constitutions of the states of the European Union. Under the general editorship of L.A.Okunkov. M.: 1997. p. 176).

The legislative authorities in the German lands "are the landtags (land parliaments), which usually consist of 120 deputies elected according to a mixed majority-proportional system" (Constitutional (state) law of foreign countries. Textbook. In 4 volumes. Volumes 1-2. Ed. by B.A.Strashun. M.: 1995. p. 691). Everywhere, they have a unicameral structure and are elected for four or five years.

The German Constitution provides for a kind of prohibition on expressing the will of the people in relation to legislative bodies during a certain period of time, which is related to the state of defense.

Thus, according to Part 1 of Article 115-h of the German Constitution: "The term of office of the Bundestag and the people's representative bodies of the lands, expiring during the state of defense, ends six months after the end of the state of defense" (Constitutions of foreign countries: Great Britain, France, Germany, Italy, the European Union, the United States of America, Japan: textbook the manual. M.: Infotropik Media, 2012. p. 640. P. 228).

In addition, the legislation not only prohibits the expression of the will of the people in the event of suspension of the powers of legislative bodies, but also provides for the nullification of their powers in relation to the composition of the legislative bodies of the lands based on the results of the people's will.

So, unlike the Bundestag, most of the people's representative offices of the lands can be dissolved prematurely or dissolved by a decision of voters adopted at a referendum (Constitutional (state) law of foreign countries. In 4 volumes. vol. 3. Rel. Editor B.A.Strashun. M.: 1997. p. 412).

"The electoral system in the lands is in many ways identical to that used in elections to the Bundestag. In most lands, a proportional representation system mixed with a majority one is used in elections. A five percent barrier has been established in all lands: parties that have collected less than 5% of the votes are excluded from participating in the distribution of mandates" (Constitutional law of foreign countries. Edited by M.V.Baglaya, Yu.I.Leibo, L.M.Entina. M.: 1999. p. 519).

This provision distorts the real political picture, entails the loss of votes, and therefore the credibility of the will of the people expressed in the legislative authority of the subject of the federation is embodied taking into account this limitation.

However, there are researchers who find positive aspects in the barrier. Thus, according to E.A. Zakharova: "the electoral system is one of the institutional filters that prevent marginal parties from coming to power, while giving individual candidates a chance, thanks to their personal qualities, to come to power, and at the level of the landtags, in addition to this, the picture of voting for a particular party, on the one hand, it is more representative, on the other hand, it may be an obstacle to the admission of those candidates who do not find support from the electorate" (Zakharova E.A. Foreign cultural migration as a factor of electoral behavior of citizens at the subnational level of politics in France and Germany : dissertation ... Candidate of Political Sciences. Moscow, 2021. p. 115).

German legislation, in its rules of law, predicts possible options for distorting the will of citizens.

Thus, in the State under consideration, criminal liability is provided for distortion of the expression of will in elections during voting in part 4 "Crimes against constitutional bodies, as well as during elections and voting (§§ 105 - 108e)" of the German Criminal Code (Criminal Code of Germany), according to which the following types of distortions are distinguished: § 107 "Obstruction of voting", § 107a "Falsification of elections", § 107b "Falsification of electoral documents", § 108 "Coercion of voters", § 108a "Deception of voters", § 108b "Bribery of voters". Moreover, both the rules of voting and the conduct of elections and the responsibility for their violation extends not only to the sphere of formation of elected public authorities, but also to the sphere of formation of elected bodies of trade unions.

It is possible to propose the following classification of types of distortions of the will of a citizen (based on their nature). For example, to: 1) inconsistency of a citizen's will with his will can be attributed to § 108a "Voter fraud", § 108b "Voter bribery" of the German Criminal Code 2) the formation of the unfree will of a citizen can be attributed to § 107 "Obstruction of voting", § 108 "Coercion of voters" of the Criminal Code of Germany 3) distortion of the will of a citizen can be attributed to § 107a "Falsification of elections", § 107b "Falsification of electoral documents" of the Criminal Code of Germany.

By virtue of Section 107 of the German Criminal Code, any person who hinders elections or the determination of their results by force or threat of violence is criminally liable, and an attempt at these acts is also provided.

As researcher I.S. Vlasov notes, there are several legal positions in the aspect of the values protected by the said rule of law. According to the first, it was expressed by the Supreme Federal Court of Germany, which noted such a value as "universal interest in ensuring the freedom of democratic expression of citizens", in turn, the second position is expressed informally and belongs to researchers pointing to another value, namely "the individual interest of a citizen in the correct assessment of the vote he has cast" ^{[8, 69]}. As can be seen, the first legal position proceeds from the objective suffrage of all citizens, and the other from the subjective suffrage of a particular citizen, but in both positions there is an indication of the will of both citizens in the first position and a particular citizen in the second position, and in both of them, only through an assessment of the vote cast by a citizen.

Let's focus on the most significant violations, as it seems, when there is a distortion of the will of citizens, since employees of election commissions may be involved in them. Thus, according to Section 107-a of the German Criminal Code, criminal liability is incurred, including for an attempt, namely, the one who carries out election fraud: who votes without the right to do so or otherwise leads to an incorrect election result or falsifies the results; unauthorized voting is also performed by someone who votes within the limits of permissible assistance contrary to the voter's decision to vote or without the voter's expressed decision to vote; similarly, anyone who incorrectly announces the election results or publishes them.

Researcher I.S. Vlasov narrates that the following actions may fall under falsification of election data: incorrect counting of votes, removal of ballots from the ballot box and non-participation in their counting, deliberate substitution of incorrect numbers in the electoral documentation, evaluation of invalid ballots as valid ^{[8, 70]}.

In addition, the commented-on type of distortion of the will of citizens can occur at various stages of the electoral process, namely: during and after voting, when determining election results and after it, when announcing and (or) publishing election results. At the same time, the commission of this type of distortion is hardly possible without the mandatory participation of relevant officials who have access to election documentation and whose duties include the announcement of election results and (or) their publication.

In accordance with § 107-b of the German Criminal Code, any person who: obtains his entry in the electoral register (electoral dossier) by providing false information, registers as a voter another person who, as he knows, does not have the right to register, prevents the registration of a voter as a voter, is punished for committing falsification of electoral documents, Although he knows his right to vote, he runs as a candidate in the elections, even if he or she is not eligible.

As can be seen from the above-mentioned rule of law, the German legislator approached the description of its disposition in great detail and outlined in it several possible cases of distortion of the will of citizens, which indicates the legislator's casuistic approach to law-making ^{[9, 87-92]}.

German law researchers suggest that Section 107-b of the German Criminal Code complements the provision of the law on the prohibition of election fraud contained in section 107-a of the German Criminal Code, since the implementation of the first rule of the law provides preparatory actions for the implementation of the second rule of the law. Thus, Till Zimmermann notes several options for implementing preparations for falsifying election results: including false information in the voter list; preventing the registration of a person entitled to vote; mass exclusion of persons entitled to vote from the voter list before the election, which may, for example, affect the fulfillment of the necessary quorum; using a false passive right to vote the votes of citizens, i.e. the right that a citizen does not actually have (Die Wahlfälschung (§§ 107a f. StGB) im Gefüge des strafrechtlichen Schutzes der Volkssouveränität. Von Akad. Rat a.Z. Dr. Till Zimmermann, Passau // www.zis-online.com/dat/artikel/2011_12_639.pdf (access date 03/13/2023)).

The peculiarity of falsification is its appearance, such as the nomination of a candidate for election in the absence of a passive right, which has no analogues in Russian legislation. It should be noted that the possibility of deprivation of a subjective right, including an electoral one, is provided for at the constitutional level. Thus, according to Article 18 of the Basic Law of the Federal Republic of Germany of May 23, 1949 (hereinafter referred to as the Constitution of Germany), anyone who uses rights and freedoms to fight against the foundations of a free democratic system is deprived of these basic rights (Constitutions of foreign countries: Great Britain, France, Germany, Italy, the European Union, the United States of America, Japan: textbook. Moscow: Infotropik Media, 2012. pp. 640. pp. 172-173).

It can be assumed that in establishing this type of offense, the legislator's desire is manifested to prevent those candidates for deputies who do not have such a right from participating in the elections, since in the case of admission of such persons to the elections and voting for them, the will of voters will be subject to distortion, since they will be given the right to vote for a candidate who does not have the right to be to the chosen ones, which will distort the will of the people as a whole. In this case, the votes of citizens will be distributed differently than in the absence of this candidate who does not have the right to be elected.

At the same time, judicial practice proceeds from the deliberate behavior of the perpetrator. Thus, the Constitutional Court of Baden-Württemberg, refusing to accept the applicant's constitutional complaint for its proceedings, pointed out that the right to stand as a candidate in local elections is a right equivalent to the basic principle of democracy, however, the applicant's actions do not fall under the protection of passive suffrage, since deliberate electoral fraud is not protected by the right to run as a candidate, for example, to pretend to have the right to vote, and to cheat in order to run for elected office, in connection with which, the conviction of the plaintiff in deliberate election fraud does not cause any constitutional concerns (VerfGH Baden-Württemberg, 30.08.2016 - 1 VB 59/16 (http://verfgh .baden-wuerttemberg.de/fileadmin/redaktion/m-verfgh/dateien/160830_1VB59-16_Beschluss.pdf ) (access date 02/16/2023)).

A.V. Serebrennikova, a researcher of German law, dwells in great detail on the consideration of Section 107a of the German Criminal Code, which provides for liability for falsification of election results. As examples from judicial practice on this issue, the following are given: 1) a case of abuse of voting ballots when electing to the Landtag of North Rhine-Westphalia; 2) a case of falsification of election results that occurred in May 1989 in Dresden (former GDR) ^{[10, 17-25]}.

A.V. Serebrennikova narrates: "Despite certain differences in the design of the relevant norms in the Criminal Code of Germany and the Criminal Code of the Russian Federation, it can be concluded that the trends of criminalization of socially dangerous behavior associated with encroachments on the electoral rights of citizens and the right to participate in a referendum are common to the criminal legislation of these two countries" ^{[10, 86]}.

It is proposed to identify broad and narrow approaches to understanding reliability when it comes to identifying the will of the people in direct forms of democracy.

Thus, a narrow approach is relevant only to the correctness of the counting of votes, and then the reliability of the will of the people should be defined as the correspondence of the final voting protocol to the actual will of the people, and with a broad approach it is proposed to consider it as the correspondence of the will of the people to the true and free will of the people.

These approaches can be applied to German law.

Thus, the unjustified restriction of passive and active voting rights is associated with the restriction of the will of the people and negatively affects the credibility of the will of the people in a broad sense.

Let's consider one example when the constitutional justice of Germany declared unconstitutional the ban on restricting passive and active voting rights.

According to section 13 of the Election Law: "The person who is deprived of the right to vote as a result of a judge's decision is deprived of the right to vote."

It is noteworthy that the wording of the said norm before January 29, 2019 had two more parts, namely "2. the person to whom a guardian has been appointed to conduct all his affairs ... 3. the one who is in a psychiatric hospital on the basis of the decree specified in § 63 in combination with § 20 of the Criminal Code."

Thus, until January 29, 2019, the legally incapacitated and criminally prosecuted persons placed in a psychiatric hospital were deprived of the right to vote.

By Resolution No. 2 BvC 62/14 of the FCC of the Senate of the Second convocation of January 29, 2019, the above-mentioned provisions on the deprivation of citizens of the right to vote were declared unconstitutional. The FCC noted that the disenfranchisement of persons under guardianship (§ 13 Part 2 of the Federal Election Law) and persons in a psychiatric hospital under criminal procedure (§ 13 Part 3 of the Federal Election Law) violates both the principle of universal suffrage in accordance with Article 38 of the German Constitution and the prohibition of discrimination on the basis of disability in accordance with Article 3, Part 3 of the German Constitution (https://www.bverfg.de/SharedDocs/Pressemitteilungen/DE/2019/bvg19-013.html ).

Thus, the ban on participation in democracy for citizens was eliminated, which in a broad sense had a positive effect on the reliability of reflecting the will of the entire people on the election results.

In a narrow sense, various methods of falsification are associated with the reliability of the will of the people in relation to the stages of voting, their organization, summing up and determining the results of elections. Thus, M. Hausen identifies the following "falsifications" of election results: replacement of entire ballot boxes, as well as individual ballots (for example, canceling them or marking other candidates in elections), to replace or add new marks in the ballot ^[11].

Election fraud is the illegal falsification of election results, which is carried out secretly in relation to voters, possibly also voters or election management. Among the types of distortion of the will of citizens, falsification of voting by individuals and organized vote fraud are distinguished. Thus, individuals may try to vote without the right to vote, vote several times or vote instead of other citizens, namely: voting by one voter at several polling stations; when voting by mail, filling out election documents for those who do not have the right to vote (for example, the mentally retarded); if there are several European citizens - voting in the European elections in several states (www.zeit.de/politik/ausland/2014-05/europawahl-doppelte-staatsbuergerschaft-doppelte-wahlbenachrichtigung (access date 03/16/2023)). In case of organized election fraud (organized election fraud is organized by people with public positions, candidates/parties participating in elections, or other groups interested in the outcome of elections, with the aim of significantly distorting the election result). Possible methods for this: ballots for voters who did not show up are filled in, and the voting results tendentially change; after opening the ballot box, some ballots are withdrawn and replaced with others with a tendentious mark; ballots with the will of citizens may be invalidated by additional marks in them; voting for the deceased or re-inclusion of non-existent persons in the electoral lists for which other people vote; incorrect distribution of votes between candidates when calculating the result; complete falsification of the election result by manipulating election documents and ballots ^[12].

One can take an example of the fact that the prosecutor's office in Halle conducted an investigation against a member of the Halle electoral commission, the mayor of this city and his deputy for falsifying the European elections (Wahlfälscher in Halle verurteilt // https://www.volksstimme.de/sachsen-anhalt/wahlfalscher-in-halle-verurteilt-901492 ).

Examples of accusations of fraud are found in Germany and in local elections. Thus, several persons were charged with manipulating the municipal elections in Lower Saxony in 2016 with the help of postal voting in the city of Quakenbrück, where, according to the prosecution, they persuaded voters to hand over postal ballots to them, then filled out some documents themselves, and forged signatures (Jean-Charles Fays: Quakenbrücker Wahlfälschung: Andreas Maurer verurteilt, Neue Osnabrücker Zeitung, June 11, 2018).

In Germany, a paper voting system is used by voting with ballots, but in the electoral legislation there is another way of voting, namely using electronic voting machines.

Thus, according to section 35 of the Federal Election Law, "In order to facilitate the submission and counting of votes, voting machines can be used instead of ballots and ballot boxes," then, on the basis of this rule of law, a decree was adopted on the use of voting machines in elections to the German Bundestag and deputies of the European Parliament from the Federal Republic of Germany.

However, in a historic decision of March 3, 2009, the Federal Constitutional Court declared the rules of law on electronic voting unconstitutional (www.bundesverfassungsgericht.de/entscheidungen/cs20090303_2bvc000307 (access date 02/27/2023)). In this regard, despite the possibility of voting in the legislation, it is not used at the federal level.

We note the criminally confirmed falsification of election results in Dachau in 2002, which is one of the largest known cases of election fraud in Germany.

In the mayoral elections held in 2002, the candidate who was not the favorite won in the second round with a margin of only a few dozen votes, and therefore suspicions arose about the distortion of the will of citizens. Human rights defenders were able to obtain copies of the ballots, which were filled out in the same way, as they believed, in the same handwriting, on the basis of which it was concluded that the ballots were filled out by the same person. Later, in an expert opinion prepared at the initiative of the Munich Prosecutor's office, it was concluded that the relevant ballots were "probably filled out by one person." In the course of the following investigations conducted by the criminal police, additional evidence was revealed: 3,500 ballots were lost; additional ballots were found; a confession of one of the election falsifiers was obtained (www.mdr.de/nachrichten/sachsen-anhalt/stendal/prozessauftakt-briefwahlaffaere-stendal-100.html ). Another indirect proof of the distortion of the will of citizens was that the results of voting by mail were unusually different from other electoral districts. What is noteworthy and has no analogues in Russia is that the falsifiers have undergone not only criminal sanctions, but also civil ones in the form of reimbursement of expenses for organizing and holding repeat elections. Thus, a court decision, which was confirmed by the Munich Higher Land Court, established for the first time in court the property liability of election falsifiers for reimbursement of costs associated with holding a repeat vote (https://www.sueddeutsche.de/politik/bayern-dachauer-wahlfaelscher-muessen-mehr-als-116-000-euro-zahlen-1.776396 (02/27/2023)).

In addition, attention can be drawn to the fact that for law enforcement agencies in Germany as a whole, the task is to conduct due diligence on citizens' statements related to election fraud.

Thus, the Federal Court of Germany (Bundesgerichtshof Urt. v. 08/21/1997, Az.: 5 StR 403/96 // https://research.wolterskluwer-online.de/document/0846ad75-d6a3-4829-8b6c-1de5be35d35d (accessed 03/13/2023)) overturned the acquittals of the Deputy Prosecutor General and three other high-ranking prosecutors on charges of prejudice to justice in connection with preventing any review of criminal charges of election fraud.

Non-criminal legal means of ensuring the authenticity of the will of the people in Germany

If, according to the legislation of Russia, cases of appeal against actions (omissions) of election commissions previously belonged to the civil procedure, then at present, namely since 2015, they belong to the administrative procedure and are regulated by the Code of Administrative Procedure. At the same time, the procedure allows for the possibility of appealing the voting results only at the level of the polling station and only by such a voter who voted there.

Moreover, if Russian legislation provides for a single appeal procedure, namely an administrative one, then in Germany legislation provides for two procedures: administrative and constitutional.

Let's start with the administrative procedure. German law considers that the activities of election organizers are an administrative procedure and therefore their decisions are administrative acts, in the event that this act affects the rights of an individual citizen or a party.

Thus, according to section 35 of the Federal Law on Administrative Procedure, "An administrative act is any order, decision or other sovereign measure adopted by an authority to regulate an individual case in the field of public law and having direct legal force from the outside."

Hence, the decisions of election commissions in relation to a citizen or a party are an administrative act and are considered in administrative courts (for example, an appeal against the refusal to issue a ballot).

In addition to the administrative procedure, German legislation has a constitutional procedure relating to the correctness of reflecting the will of the people in the election results.

Since the issue of distortion of the will of the people in relation to the election results is raised, first of all it has a constitutional and legal character, and traditionally German legislation provides for the trial of such cases with the help of constitutional justice.

At the same time, there are several legal systems of constitutional justice to ensure the authenticity of the will of citizens when voting in direct forms of democracy.

Thus, the types of legal means used by citizens are distinguished depending on the level of public authority in constitutional proceedings: 1) federal constitutional justice; 2) constitutional justice in each land (subject of the federation).

Federal constitutional justice is carried out by the Federal Constitutional Court (hereinafter referred to as the FCC) here, as a general rule, the mandatory basis for appeal is to consider the applicant's case in other instances before applying to the FCC using other means of protection (we will call this condition the pre-constitutional procedure).

However, there are exceptions to this rule. An exception to this rule is a case that has a special public significance and in this case, according to the decision of the FCC, it is accepted for court proceedings without observing the pre-constitutional order.

Thus, according to Article 90 of the Law on the Federal Constitutional Court: "(1) Any person may file a constitutional complaint with the Federal Constitutional Court on the grounds that one of his fundamental rights or one of his rights enshrined in article 20.4, articles 33, 38, 101, 103 and 104 of the Basic Law was violated by the state authorities. (2) At the same time, the Federal Constitutional Court may immediately decide on a constitutional complaint filed before the exhaustion of legal remedies, if it is of general importance or if the applicant finds himself in a serious and unavoidable disadvantage if he first applied to the court. In case of violation of the judicial process, a constitutional complaint can be filed only after exhaustion of legal remedies."

It is also noteworthy that any person can apply for protection of their rights if their right to access political elective positions is violated (Article 33 of the German Constitution) and to organize universal, direct, free, equal and secret elections (Article 38 of the German Constitution).

Using the pre-constitutional order as a condition for applying to the FCC, as a general rule, is necessary, but there are other conditions.

Thus, an applicant to the FCC must use other means of legal protection (through an extra-criminal procedure) and achieve their exhaustion.

One method of legal protection is provided for all levels of elections in the legislative body – the Bundestag, another method of legal protection is provided for the regional and local level of elections – the constitutional courts of the lands.

However, not all lands have a legal remedy for the protection of subjective suffrage, and then it is possible to appeal directly to the FCC in case of violation of the principles of electoral law.

Thus, the FCC notes: "The lack of jurisdiction of the Federal Constitutional Court to provide citizens with subjective legal protection against violations of the principles of suffrage in elections to people's representative offices of the lands corresponds to the fact that the parties have been for a long time (cf. BVerfGE 4, 27 ^[30].]) may claim a violation of their right to equal opportunities to participate in elections in the lands only in the order of a dispute, which they must resolve in the Constitutional Court of the land (Article 93, paragraph 1 No. 4, 3rd option GG). This dispute about the organs is finally resolved in the land (cf. BVerfGE 96, 231 [242 F.] M.V.N.). The jurisdiction of the Federal Constitutional Court is established only if judicial proceedings are not open in the land, but in these cases it acts as an "auxiliary constitutional court of the land"" (Ruling of the second Senate of July 16, 1998 No. 2 BvR in 1953/95. // https://www.servat.unibe.ch/dfr/bv099001.html ).

At the constitutional level, it is established that election control is a matter for the Bundestag (Article 41 of the German Constitution), which emphasizes the judicial powers of the classical legislative body in a parliamentary republic.

In turn, the decision of the Bundestag on the issue of distortion of the will of citizens may be appealed to the FCC.

Thus, according to Article 48 of the Law on the Federal Constitutional Court: "A complaint against the decision of the Bundestag on the validity of elections, violation of rights during the preparation or conduct of elections to the extent that they are the subject of election verification in accordance with Article 41 of the Basic Law, or loss of membership in the Bundestag, a deputy whose membership is disputed, a person, a person entitled to vote, or a group of persons entitled to vote, whose objection has been rejected by the Bundestag, a parliamentary group or a minority of the Bundestag, amounting to at least one tenth of the number of members established by law, submits a complaint to the Federal Constitutional Court within two months from the date of the decision of the Bundestag; the complaint must be substantiated within this period" (The Law on the Federal Constitutional Court (as amended by the announcement dated 08/11/1993 // Federal Legislative Bulletin I p. 1473; last amended by the law of 11/20/2019 // Federal Legislative Bulletin I, p. 1724).

According to section 2 of the Election Control Act (WahlPrG), the verification of elections is carried out only in case of an objection to them, which can be submitted by any person entitled to vote, any group of persons entitled to vote, the chairman of the election commission and the Chairman of the Bundestag.

As can be seen from the content of the said legal norm, it is enough for a citizen to have the right to vote, i.e. active suffrage, in order to challenge the election results (the so-called right to file a lawsuit).

At the same time, in order for the claim to be satisfied, a citizen must, as a rule, prove not only a violation of electoral rights and electoral legislation, but also that these violations affected the election results, i.e. the distribution of seats in the legislature (the so-called right to satisfaction of the claim).

Based on the above, it can be concluded that the competence of constitutional justice includes both norm control, i.e. verification of the reliability of the election result and the correctness of vote counting (a narrow approach to the reliability of the will of the people during voting), and the possibility of influencing political choices, for example, when the issue of the exclusion of electoral associations from participation is being resolved in elections (a broad approach to the reliability of the will of the people when voting).

Thus, with regard to German legislation and judicial practice in comparison with Russian analogues, it can be said that these sources of German law are aimed at developing the initiative and legitimate activity of their citizens and are more broadly suited to the legal regulation of relevant procedures related to the legal protection of the will of citizens in a direct democracy.

Thus, the results of comparing the legal regulation of the above-mentioned legal order in Russia and in Germany are as follows: 1) initiation of a claim to challenge the election results (the subjects of the challenge are not only those citizens who voted at this polling station (Russia), but all citizens with active suffrage (Germany); 2) the possibility of citizens challenging not only the voting results (Russia), but also the election results (Germany); 3) the possibility of invalidating the election results (in Russia, the analogue is the recognition of the results of voting at a polling station and there is no possibility for a citizen to initiate a claim to challenge the election results) not only on the basis that electoral violations affect the validity of the expression of will or the validity of the will of citizens (Russia), but on the basis of the materiality of the violation itself (Germany); 4) the possibility of hearing a case initiated by a citizen, in which the question of distortion of the will of citizens is raised not in the district court (Russia), but at the highest instance level – the highest legislative and representative body of the country - the Bundestag of Germany, and in case of disagreement with its decision, in providing an opportunity to appeal to the FCC.

It can be concluded that the sources of German law are constructed in such a way that the following theses are used in relation to the protection of the will of citizens: if mistakes are made during the electoral process, as a rule, affecting the election result (and in some cases, a significant violation in itself is enough), then the composition of the elected body does not reflect a reliable the will of the electorate and the legitimacy of the political process are being violated, and therefore effective verification of the correctness of election results is necessary so that the composition of the elected body reflects the reliable expression of the will of citizens, which is the basis of their trust in a democratic state, which, firstly, should not be questioned or shaken in this way, and secondly, would tend to preserve it as long as possible in the long term.

The study of the foreign practice of organizing the determination of the reliable expression of the will of the people in direct forms of democracy allows borrowing for the legal regulation of public relations arising in Russia.

It is necessary to develop conditions for the manifestation of initiative and activity of people in the electoral sphere of Russia, by providing large-scale and number of legal remedies, securing these means at the constitutional level (for example, by providing the Constitutional Court of Russia with the function of resolving electoral disputes about the distortion of the will of voters).

It is proposed to legislatively and constitutionally consolidate the increasing importance of political parties in the sphere of forming the will of the people and protecting their expression of the will of the people in direct forms of democracy with the help of constitutional justice.

Taking into account foreign experience, it is possible to introduce specific measures of criminal and civil liability of a casuistic nature for non-fulfillment or violation of the procedural norms of the electoral process provided for by law, entailing distortion of the will of voters.

For example, it is proposed to supplement the disposition of Article 142.1 of the Criminal Code of the Russian Federation with Part 2 of the following content: "2. Voting without the right to this or other actions leading to an incorrect election result, as well as incorrect announcement of election results or their publication."