Report by the President of the National Election Commission on the activities of the National Election Commission during the 2014 general election ...

President of
                             the National Election Commission

Report by the President of the National Election Commission on
  the activities of the National Election Commission during the
 2014 general election of municipal representatives and mayors

Rapporteur: Prof. Dr. PATYI András
Budapest, November 2014

On the basis of my scope of authority as set out in paragraph (2) of Article 13 of Act XXXVI
of 2013 on Electoral Procedure (hereinafter referred to as ’Ve.’), let me report to the
Honourable National Assembly on the activities of the National Election Commission
(hereinafter: ’NEC’) during the 2014 general election of municipal representatives and
mayors.

Paragraph (1) of Article 31 of the Fundamental Law of Hungary (hereinafter: ’Fundamental
Law’) names local governments as the entities whose responsibility it is to manage local
public affairs and to exercise local public authority. The basic way for electors to exercise
their right to govern themselves on a local level is the election of their representatives and
mayors – respectively responsible for exercising the powers regarding local governments.
The most important rules underpinning the fundamental political right to vote, in terms of
the election of the municipal representatives and mayors, are set out in paragraphs (1)-(3)
of Article XXIII of the Fundamental Law, whereas the constitutional principles regarding the
elections are fixed in paragraph (1) of Article 35. For the representatives and mayors who
were elected after that the Fundamental Law had entered into force, paragraph (2) of Article
35 of the Fundamental Law defines the term in office as being 5 years.

Elements of the electoral system and its rules pertaining to the substantive law are contained
in Act L of 2010 on the Election of Municipal Representatives and Mayors (hereinafter
’Övjt.’). This law was constituted after rethinking the previous regulation and deeply
remodelling its basic system. The aim of the law was a simplification of the electoral rules
and a reduction of the staff of the bodies. In 2010, Övjt. proved to be adequate as a legal
background for conducting the municipal and mayoral elections, therefore no comprehensive
amendment was done to it. A major change to the substantive rules was the legal
amendment in 2014 (Act XXIII of 2014), which modified the composition of the Budapest
Assembly. The majority of the members got elected into the Budapest Assembly as district
mayors, in other words, the members were elected not from lists but directly by the electors
of the districts. In its resolution No. 26/2014. (VII. 23.) AB, the Constitutional Court declared
that voting procedure as defined in Act XXIII of 2014 was in line with the Fundamental Law
and with direct voting as a basic principle underpinning elections.

The rules pertaining to the electoral procedure are contained in Act XXXVI of 2013 on
Electoral Procedure, renewed in 2013.

On the basis of his power as enshrined in the Fundamental Law, the President of the
Republic – in his resolution No. 270/2014. (VII. 23.) KE, taken on 23 July – set the date of
the 2014 general election of the municipal representatives and mayors for 12 October 2014.

Following two elections organized this year, the election bodies – and especially the election
commissions – had to ensure and to participate in the lawful conducting of the elections of
municipal representatives and mayors. From the day of calling the elections to the day of
voting they had 82 days to prepare themselves for this.

I. Levels of decision in the election of municipal representatives and mayors

At the election of municipal representatives and mayors, every polling district had its own
operating ballot counting commission – in settlements with a single polling district, the
powers and responsibilities were held by the local election commission; in every settlement
there operated a local election commission, for the 19 counties and the capital Budapest
there were territorial election commissions, and there was the National Election Commission
with a competence for the whole country.

The local and territorial election commissions and the NEC ensured the legal remedy fora.

At the municipal and mayoral election, and taking into account the provisions of Ve. 28. §,
nominating organizations and independent candidates were entitled to appoint members in
the ballot counting commissions, local election commissions and territorial election
commissions. Being the fact that in this election not the whole territory but only well-defined
units of the country formed constituencies – so for ex., settlements with less than 10 000
inhabitants; in the case of settlements with more than 10 000 inhabitants: the single-
member constituencies; and the counties –, there was no possibility for independent
candidates nor for organizations putting forward candidates or lists to appoint a member in
the NEC, an entity operating with a nationwide competence.

II. The decision-making process

In the period between the day of the calling of the elections and the day when the results of
the repeated elections became final and binding on 17 November 2014, the NEC – with its 7
appointed members and 5 other delegated by the political parties having a parliamentary
group – held 28 sessions, took 97 resolutions in the first instance, 50 resolutions on second
instance, which is 147 resolutions overall.

In this 2014 election of municipal representatives and mayors, the number of the elections
that had to be repeated in certain settlements and polling districts as a consequence of legal
remedy procedures, decreased in comparison with the 2006 and 2010 figures. In 2006,
elections were repeated in 13 settlements, in 2010 this figure was 18, whereas on 9
November 2014, 11 elections had to be organized again.

a) Nominating organizations, candidates

Unlike during the election of the Members of the Hungarian Parliament and the European
Parliament, authority to register the nominating organizations for the municipal and mayoral
elections was exerted by the NEC and territorial election commissions. The territorial scope
of decisions made by territorial election bodies related to the registration of nominating
organizations was not this time restricted to the territory of competence – namely, the
county where they operate – of the territorial election bodies. The scope covered the whole
country, ensuring the right to put forward candidates and draw up lists for every registered

organization in every settlement and county of Hungary. As a result of this division of tasks,
the NEC registered 79 organizations, and the 20 territorial election commissions registered
224 organizations in their final decisions.

The number of parties and associations standing for election shows an important decrease in
comparison with 2014 and the two elections that preceded it. Whereas in 2006 the number
of organizations registered by the election commissions was 691, in 2010 they were 405 and
in 2014 303. In eight years the number of organizations that bid for the electors’ support to
have a word in local public affairs fell to less than 50%. The number of candidates registered
(61 373) is also in decrease in contrast to the previous election (62 283).

b) Legal remedy requests

Out of the 97 NEC resolutions of first instance, only 15 followed objections. More than half of
these 15 were rejected without an examination on the merits.

As to the procedures on second instance, where the NEC had to examine the resolutions by
territorial commissions against which appeals had been submitted, and it also had to
examine the procedures preceding those resolutions, we can summarize as follows: in the
context of these procedures, most decisions were rejections without an examination on the
merits. Out of the 50 appeals, in 14 cases the Commission found that the requests submitted
for legal remedy didn’t meet the formal requirements that had been postulated by the
legislator as necessary for an examination on the merits. When examining the 36 appeals
judged apt to an examination on the merits, in 12 cases the NEC modified the decisions
made by the territorial commissions stating that these 12 resolutions had to be rejected
without an examination on the merits.

ba) Legal remedies related to the involvement of the media in election campaigns

The great bulk of the legal remedy requests adjudged by the NEC were submitted on the
grounds that the rules of the election campaign had been violated. Most of them were linked
to the media breaching the campaign rules.

In connection with articles and printed political advertisements published online, the
Commission adopted the view that these contents fall, by their very nature, under the same

consideration as any other article or political advertisement published in a printed press
product. This means that any article or advertisement appearing in an online newspaper or
news portal is considered as the result of a one-off act in the same way as if it was published
in a printed press product. The fact that an online content is accessible for a longer period of
time than an article or advertisement published in a printed press product, does not qualify
the presumed legal violation as a continuous act.

Accessing contents in printed press products or on internet news portals is only a theoretical
possibility allowed by the very fact of those contents being published on internet or in a
newspaper. To exactly know the content of an article or advertisement published on the
world web, one needs to be active and in possession of the appropriate IT tool. To have
knowledge of a given content against which objection has been submitted, one always has
to carry out a series of actions. While the publication of an article or an advertisement – let it
be on internet or in a printed press product – is always a one-off act, to actually have
knowledge of these requires a directed will and the subsequent action performed for that
purpose. Other conditions are the appropriate IT tool, the search engine, and the concrete
acts carried out by the elector, namely: the search for the media content in question, and
actually watching the content that has been found.

The Commission therefore decided that in the case of a legal remedy request submitted
against the content of an online press product, provision Ve. 209. § (1) should apply for
calculating time limits. This means that the 3-day time limit for submitting an objection is
calculated not from the moment when the media content is perceived but from the moment
of its publication. When adopting this interpretation, the National Election Commission took
into account that if a one-off publication on the internet of an article or a political
advertisement would be considered by the election bodies as a continuous act – and based
on which objections could be submitted until it is accessible on the internet –, legal remedy
requests could be filed over and over again during the whole campaign period of 50 days.
This interpretation of the law would be in contradiction to the legal remedy system of the
Ve., which defines strict, predetermined time limits.

At the end of the elections, in one of its decisions linked to a concrete legal case, the Curia
(the Supreme Court) put forward a view contrary to the one above.

The election campaign is a mean for the candidates to stand for election. Its primary goal is
to influence the voter in his/ her will. It can be noticed that figuring in online newspapers,
news portals is more and more preferred by candidates and nominating organizations as a
campaign method. Certain segments of society and age groups can far more easily be
reached by the internet than by the way of the printed press.

The National Election Commission duly recorded that it would in any case follow the latest
standpoint adopted by the Curia – that is, the court entitled to review its decisions –
irrespective of whether it goes along with the NEC resolution or not. However, taking into
account the fact that online press products grow in importance in campaign periods,
procedural rules pertaining to them should not be based on the mere practice of the law –
they need to be regulated in detail by the law.

bb) Legal remedy way against decisions by election commissions

In their procedures, both the NEC and a regional court of appeal with territorial competence
had to deal with errors made by lower level election bodies when these had to adjudge legal
remedy requests. In some cases, territorial election commissions passed on legal remedy
cases to the wrong legal fora. A territorial commission, after closing its first instance
procedure, handed over the remedy case to a regional court of appeal, whereas another
territorial commission opened the door, after a second instance procedure, for such a
remedy request to pass to the NEC – instead of transferring the case to a regional court of
appeal with territorial competence.

The regional court of appeal in question then passed on the appeal wrongly received to the
National Election Commission, which had the jurisdiction. By doing so, the court proceeded
as it had to – ensuring for the requestors their right to legal remedy; indeed, the requestors’
right to legal remedy could only be guaranteed by a body which had the authority by the
law. Satisfying its legal obligations, the NEC assessed the legal remedy request, and issued a
second instance resolution which became final on the third day after it had been taken as
there was no further legal remedy.

Another case, by contrast, was more complicated, when a territorial election commission
repeatedly qualified appeals submitted against results of mayoral and municipal
representatives’ elections as objections. In the same time, in the dispositional part of its

resolution, the territorial commission in question applied the legal consequences foreseen for
both appeals and objections, and opened a legal remedy way to the NEC. The National
Election Office passed on the legal remedy requests filed against the resolutions on second
instance by the territorial election commission to the competent regional court. The regional
court with territorial competence received and assessed all the requests. The requestor of
one of the legal remedy cases raised an objection against the proceeding of the National
Election Office, then went on to lay a judicial review request against the NEC’s rejection. The
Curia said that the NEO had no powers by the Ve. to assess legal remedy requests – the
NEO should have transferred such cases to the NEC. In the same time, the Curia also made
it clear in its decision that, when adopting its contested resolution, the territorial election
commission proceeded – in harmony with the view of the National Election Office – as a
body on the second instance, and „despite the fact that, formally, the NEO proceeded
against the provisions of the Ve. when it passed on the documents to the (..) regional court,
it essentially followed the legal remedy way foreseen in the Ve.”
Аll this above shed light on the fact that there is no legal regulation in the Ve. as to how to
settle an atypical situation where a legal misinterpretation by a lower-level election body has
to be corrected in order for it to be in line with the legal remedy order of the Ve., having in
sight that the right of the requestor to have his/ her legal remedy respected should not be
hollowed out.

III. Legal remedy cases submitted against decisions by the National Election
Commission

Аgainst the 147 resolutions taken by the National Election Commission during the election
procedure of municipal representatives and mayors – that is, in the period between the
calling of the elections and the results of the repeated elections becoming final – only 17
judicial review requests were filed. Among these, 3 were rejected by the Curia without an
examination on the merits, and 14 were examined. In 11 cases, the court found that the
procedure of the NEC had been lawful and the resolutions were in total harmony with the
legal provisions.

IV. Experiences when applying the law

In connection with the election of municipal representatives and mayors, the need for a
guideline to promote a unified interpretation of the law for the election bodies came up only
one time.

On the initiative of the president of the National Election Office, the NEC issued, on 29 July
2014, the guideline No. 15/2014. NVB on the procedure to follow in the case of multiple
nominations in different settlements, different districts of the capital city or counties, and if a
candidate is nominated several times within the same type of nomination. In this guideline,
interpreting the rules of the Övjt. regarding multiple nominations and those of the Ve.
pertaining to the request and delivery of the recommendation sheets, the National Election
Commission took the view that for an elector who wants to be candidate, the election offices
have to examine the declaration of acceptance made by that elector being nominated, at the
moment when the recommendation sheet is requested by the elector. If, as a result of this
examination, and based on the records of the National Election System, the election office in
question comes to the conclusion that the nominations to be accepted by the elector are
contrary to the provisions of Article 8 of the Övjt., it informs the elector that the
recommendation sheet cannot be delivered to them as the delivery would offend the law.

Although no other request was made during the election period for a guideline to promote a
unified interpretation of the election rules, experiences when applying the law shed light on
numerous anomalies that could make it necessary to amend the legislation.

1.) I think that it would be justified to add an auxiliary rule to the procedure rules, opening
by doing so a way for the body that receives the wrongly addressed legal remedy request to
proceed in harmony with the Ve. It would be necessary to provide for the chairman of the
election commission concerned or – in the case of a court – for the chairman of the council
concerned the authority to pass on the wrongly received remedy request to the competent
body on the first day after the submission of the request. An information for the requestor
should be sent at the same time. The request should be adjudged assessed within three
days from its reception by the competent body. In a similar way to the transfer of an
objection, the submission creates a procedural obligation as well as the failure to respect the
time-limit for submission.

2.) During the campaign period of the election of municipal representatives and mayors,
legal remedy issues linked to the involvement of the media in the election campaign threw
light on several regulatory problems.

Paragraph (2) of Article 151 of the Ve. states:
„The complainant shall identify, or, if possible, attach the show or media content that proves
the violation of the law. The indicated show – if it was not attached by the complainant –
shall be acquired ex officio by the competent election commission as defined in paragraph
(1).”

Whereas the first sentence of the provision above allows, in matters of show and media
content, the mere identification of the content that violates the law, the second sentence
requires for the election commission the sole acquisition of the show. Considering all this
above, it would be justified to specify in the provision mentioned here that it should
prescribe for the election bodies the acquisition – besides that of the show – of the media
content too. A regulation should also be adopted concerning the procedure of election
commissions when the media content provider does not follow the call by the commission, or
fails to meet it in the agreed time-limit. All this would justify a detailed regulation of the
involvement of printed and online press products in election campaigns, with regard to the
problems presented above.

3.) By virtue of paragraph (4) of Article 19 of the Ve., those members of the National
Election Commission appointed by the organizations drawing up national lists at the
parliamentary and European elections, shall receive remuneration during their mandate. By
contrast, the members of the NEC who are appointed by political parties having a
parliamentary group, and who are members of the Commission in the period between two
general elections, do not receive any remuneration.

Among the election commissions, the National Election Commission is the only one with a
national competence whose term spans two election periods. Both the current elected and
the appointed members of the NEC have considerable electoral experience, and almost all of
them have a legal diploma, that is, the NEC can be considered as a body composed of
professionals. Giving mandate to the members delegated by parliamentary groups is not a
one-off act – it covers the whole period between the formation of the parliamentary group to
the day of calling of the next parliamentary general elections. The function of the members

appointed by the political parties is to take part in the discharge of the tasks of the
Commission. The important social support behind the parties appointing their respective
members and the continuous professional work done in between two electoral cycles makes
it justifiable for the appointed members of the NEC to receive a remuneration on the same
scale as for the elected members.

V. Summary

In 2014, election commissions had to carry out four times their tasks as set out in legal
provisions. As the Constitutional Court stated it in its resolution No. 917/B/1998. (АВН 2001,
1028, 1030.), election commissions are bodies with a mixed legal status. On the one hand,
they are independent societal bodies run by citizens, and subject only to the law. On the
other hand, they are authorities that establish rights and obligations for others. They are
bodies of public law that help to prevail the legitimating function of the elections, and
declare the results of an election legal or illegal.

Observing and enforcing the statutory provisions in accordance with the law was an
indispensable condition to the lawful conducting of the four general elections in 2014, among
which the election of municipal representatives and mayors. The highly professional work of
the election bodies was the guarantee for the State to meet the requirement to protect its
institutions, so ensuring the practice of the right to vote.

Therefore, let me thank every member of the election commissions and of the election
offices especially for the work they did in this years’ municipal and mayoral elections. A
special thank to the president of the National Election Office – indeed, the NEO as an
autonomous body was able again to support on a high professional level the activities of the
Commission. I wish to the leaders and representatives of the settlements and counties
success in their work for the five-year term ahead.

And now I ask the Honourable National Assembly to accept this report.

Budapest, 27 November 2014

                                                                       Prof. Dr PATYI András
                                            President of the National Election Commission