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The controller responsible for the collection, use and processing of your personal data within the meaning of Art. 4 no. 7 GDPR is: Phiture GmbH Kottbusser Damm 79C 10967 Berlin Germany If you have any questions or suggestions regarding data protection, please do not hesitate to contact us. You are welcome to direct your data protection concerns to our data protection officer by sending an email to [email protected] Our full contact details are available here.
If you visit our website, your internet browser automatically transfers log information to our server, which is stored in log files, the so-called server log files. The log files include the following data: – URL of the referring website – Date and time of a request – IP address of the accessing computer – Volume of data transmitted, browser type and its version – Information about whether the processing request was successful It is technically necessary to process this data to enable you to use the website and to ensure the long-term functionality, availability and security of our systems. The legal basis for this data processing is Art. 6 (1) (f) GDPR. This data is stored by us only for technical reasons and will, at no time, be assigned to an individual person.
There are various ways for you to get in touch with us. These include contact by e-mail via the address on the contact page or via the “ContactLead generation form” section on our website. In this instance, we shall collect the data you transmit to us for the purposes of processing your inquiry. This includes your name, e-mail address, subject matter, etc. The legal basis is Article 6(1)(b) GDPR. Data collected for this purpose will be deleted after the need for its storage ceases to exist, or, if there are legal obligations to store it, we shall limit the processing.
You have the opportunity to subscribe to our Phiture newsletter, which informs you about news from Phiture on a regular basis. To receive the newsletter via e-mail, you can sign up on our website. When registering for the newsletter, we ask you to provide your e-mail address so that we can send you the respective newsletter and, in order to address you personally, your name. You can unsubscribe from the newsletter at any time. A corresponding unsubscribe link can be found in every e-mail. It is of course also sufficient if you notify us using the contact details provided above. The legal basis of the data processing in connection with registering for the Phiture newsletter is your consent pursuant to Art. 6 (1) (a) GDPR. We use the US provider “MailChimp” for sending and managing our newsletters. MailChimp is provided by The Rocket Science Group, LLC, 512 Means Street, Suite 404 Atlanta, GA 30318 (“MailChimp”). MailChimp offers a well-thought-out and technically convincing software solution and the provider is reliable as a security-conscious and responsible company. It is certified under the EU-US Privacy Shield and is thus committed to complying with European data protection regulations. With regard to the data protection regulations applicable in the USA, which deviate from European requirements, we have concluded an additional agreement with the provider which ensures that the data of our users will only be processed on our behalf and, in particular, will not be passed on to third parties. We will transmit the data concerning your registration for the newsletter to MailChimp, which will store it for as long as you remain registered for the newsletter. In our newsletters, we use market-standard technologies to allow us to measure interactions with the email (e.g. opening of the email, which links are clicked on). We use this data for general statistical evaluations as well as to optimize and further develop our content and customer communication. This is done with the help of small graphics (pixels) embedded in the emails. The data is collected in pseudonymous form only and not linked to your other personal data. The legal basis for this is our aforementioned legitimate interest pursuant to Art. 6 (1) (f) GDPR. With our newsletters, our aim is to share content that is as relevant as possible for our users and to better understand what the readers are actually interested in. If you do not want your usage behaviour to be analyzed in this way, you can unsubscribe from the newsletter at any time or disable the display of graphics in your email client by default.
6.1 Online application form and email.
You can apply to us for advertised vacancies using our online form or send an email to [email protected] The purpose of data collection here is the selection of applicants for potential employment at Phiture. In order to receive and process your application, we collect the following applicant data: first and last name, email address, telephone number, citizenship and application documents (such as a resume). You may also provide us with additional information that you may want us to consider when you apply (e.g. your salary expectations, availability or additional documents). We will check your application and contact you if necessary, in particular, to make appointments or to clarify any questions. If you apply for a position at Phiture, in principle we will not pass on your applicant data to third parties. The legal basis for the processing of your application data is Art. 6 (1) (b) and Art. 88 (1) GDPR in conjunction with Section 26 (1) of the German Federal Data Protection Act (BDSG). We store your applicant data upon receipt of your application. If we accept your application and subsequently employ you, we will store your applicant data for as long as the data is necessary for your employment and as far as we are legally required to retain it. If we reject your application, we will store your applicant data for a maximum of six months after rejection of your application, unless you give us your consent to longer storage (Phiture talent pool). The data will be deleted automatically after this period. This also applies to applicant data stored by one of the ventures in our portfolio as part of the application process.
Our website uses so-called cookies. A cookie is a small text file which is stored by the browser on your device. Cookies are not used to run programmes or install viruses on your computer. The main purpose of our own cookies is rather to provide services tailored especially to you and to make the use of our services as timesaving as possible. Through cookies, different inquiries from your browser can be assigned to the joint session. This enables your computer to be recognized if you revisit our website. The processing of the respective cookies is based on our aforementioned legitimate interests, meaning the legal basis for this is Article 6(1)(f) GDPR. You can configure your browser settings as desired, for example, to reject the installation of third-party cookies or all cookies. If you do not accept cookies, however, this may in some cases lead to considerable functional restrictions on our website.
Unless otherwise stipulated above, your personal data will in principle be deleted or blocked as soon as the purpose of the storage ceases to exist. Further storage can take place if this was provided for by appropriate regulations to which we are subject, if further storage is required for purposes of preserving legitimate interests, or if you have given us your consent. The data can also be blocked or deleted if a storage deadline stipulated by appropriate norms expires unless there is a need for continued storage of the data for purposes of concluding a contract or fulfilling a contract.
You have the right at any time to require us to provide information about the processing of your personal data (right of access). When providing you with this information we shall explain the data processing and supply an overview of the data relating to your person which are stored. Should data stored with us be inaccurate or no longer up-to-date, you enjoy the right to have these data corrected (right to rectification). You can also require the erasure of your data (right to erasure or right to be forgotten). Should the erasure exceptionally not be possible due to other legal regulations, the data processing will be restricted, so that in future they are only available for this statutory purpose. You can also have the processing of your data restricted, i.e. if you believe that the data which we have saved is not correct (right to the restriction of processing). You also have the right of data portability, i.e. that we send you on request a digital copy of the personal data which you have provided (right to data portability). To exercise your rights as set out here, you can communicate with the foregoing contact details at any time. This also applies should you wish to receive copies of guarantees for certification of an adequate data-protection level. You also have the right to object to the data processing based on Art. 6 (1) (e) or (f) of the GDPR or for direct marketing purposes. Finally, you have the right to lodge a complaint with a competent data protection supervisory authority. You can assert this right by contacting a supervisory authority in the Member State of your habitual residence, your place of work or the place of the alleged infringement. The competent supervisory authority in Berlin is: Berlin Commissioner for Data Protection and Freedom of Information, Friedrichstr. 219, 10969 Berlin. Right of withdrawal and objection. Pursuant to Art. 7(3) GDPR, you have the right to withdraw the consent you gave us at any time. As a result of this, we will cease the data processing based on this consent with future effect. This withdrawal of your consent will not affect the lawfulness of the processing carried out on the basis of the consent prior to the withdrawal. If we process your data on the basis of legitimate interests pursuant to Art. 6 (1) (f) GDPR, you have the right under Art. 21 GDPR to object to the processing of your data, and to give us reasons which arise from your particular situation which, in your opinion, show that your legitimate interests override ours. If your objection is to data processing for direct marketing purposes, you have a general right of objection, which we will implement without requiring you to give reasons. If you would like to make use of your right of withdrawal or objection, it is sufficient to simply notify us using the contact details provided above.

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Missouri v. Coeur d'Alene Tribe, 1999 U.S. App. LEXIS 62 (8th Cir. 1/6/99).
Thompson v. Handa-Lopez, 1998 U.S. Dist. LEXIS 6586 (W.D. Tex. 3/25/98).
State of Minnesota v. Granite Gate Resorts Inc., No. C6-95-7227, 1997 WL 767431 (Minn. Dist. Ct. December 11, 1996).
The Federal Aiding and Abetting Statute (18 USC §2).
The Interstate Transportation of Wagering Paraphernalia Act, 18 USC § 1953 (1984).
The Travel Act, 18 U.S.C. § 1952 (1984).
The Professional and Amateur Sports Protection Act, 28 USC § 3702 (1994).


When handling claims for negligence in Indiana, plaintiffs’ lawyers often are faced with non-party defenses, some of which are meritorious and others which appear to be tenuous at best. Because a non-party’s presence on a verdict form can have signiﬁcant consequences for our clients and the verdicts they receive, it is important to aggressively deal with non-party defenses prior to trial and during the pleadings and discovery phases of the case.
For many years, Indiana plaintiffs were faced with the harsh contributory fault rule. Under that contributory fault rule, a plaintiff’s claims would fail if the plaintiff was to any extent at fault for the incident. Huey v. Milligan, 175 N.E.2d 698, 700 (Ind. 1961). To mitigate the effects of the contributory negligence common law, the Comparative Fault Act was adopted in 1983. However, under comparative fault, a defendant is allowed to plead that the fault of a person who was not named as a party to the case contributed in whole or in part to the plaintiff’s injuries. IND. CODE § 34-51-2-14.
When faced with a non-party defense, it is important to determine if the defendant timely named the non-party. The act provides two deadlines for a defendant to name a non-party. The ﬁrst deadline is absolute under some circumstances, and the second is based upon reasonable promptness of discovery.
Under IND. CODE § 34-51-2-16, if a defendant is served with a summons and complaint more than 150 days before the statute of limitations runs against a potential non-party, the defendant must assert its non-party defense no later than 45 days before the statute of limitations against that non-party expires. If the defendant fails to do so, the defendant is prohibited from naming that individual as a non-party, even if the defendant is unaware of the non-party’s identity or fault in the case. McClain v. Chem-Lube Corp., 759 N.E.2d 1096, 1105-1106 (Ind. Ct. App. 2001). By having this absolute time prohibition in place, the plaintiff can head off potential non-party defenses by ﬁling the claim more than 150 days before the statute of limitations expires.
Many times it is not possible to ﬁle the lawsuit 150 days before the statute of limitations expires and this portion of the statute is not applicable. However, if the claim is ﬁled less than 150 days before the applicable statute of limitations expires, the defendant still must plead their non-party defenses in a timely fashion. In this situation, if a non-party is not known at the time of ﬁling the answer, the court may allow the defendant to ﬁle additional non-parties later if they plead the non-party defense with reasonable promptness after discovery. IND. CODE § 34-51-2-16; Kelly v. Bennett, 792 N.E.2d 584, 587 (Ind. Ct. App. 2003). Although this rule does allow defendants to plead non-party defenses after the statute of limitations has run against a particular non-party, the rule does not provide them with an unlimited period of time for ﬁling non-party defenses. As noted in Kelly, the requirement that the defendant use reasonable promptness in naming non-party defendants means “some degree of diligence in investigating any possible non-party defense is warranted.” Id (defense not allowed where seven months passed between the defendant’s answer and motion to amend to add a non-party).
If a defendant has timely ﬁled the non-party defense, make sure that they plead it appropriately. Under the Comparative Fault Act, the defendant is required to specifically name the non-party. Cornell Harbison Excavating, Inc. v. May, 546 N.E.2d 1186, 1187-1188 (Ind. 1989). If the defendant simply names an anonymous or unknown per-son, such as “the driver of a red car,” as a non-party, the defense can be challenged. In Cornell, the plaintiff was injured while swerving to miss a dog in the road. The defendant named the “unknown owner of the dog” as a non-party. Id. at 1186. The court stated that comparative fault law requires that the defendant name the non-party rather than making “merely a generic identiﬁcation.” Id. at 1186.
If the non-party defense has been ﬁled, the plaintiff’s challenge does not stop there. The fact that a non-party is timely identiﬁed by the defendant does not mean that the non-party defense will be available at trial. The burden of proving the non-party defense is on the defendant. Throughout discovery and trial preparation you must investigate and discredit the non-party defense. This includes serving discovery, asking for defendant’s experts, and obtaining any other information about the defense. When appropriate, you should ﬁle a motion to strike or motion for summary judgment to avoid non-party arguments at trial. And at the close of evidence, be sure to ask the court to take away the non-party defense pursuant to Trial Rule 50.
There are many grounds to challenge non-party defenses, and the plaintiff should always be on guard to challenge them when justiﬁed. Unfortunately, too many plaintiffs have suffered the effects of improper non-party defenses on their verdicts. You must aggressively respond to these defenses.


Justia › US Law › US Case Law › US Supreme Court › Volume 224 › Holt v. Crucible Steel Co.
Under 67a of the Bankruptcy Act of 1898, the effect to be given to an unrecorded chattel mortgage must be determined by the recording law of the state.
As construed by the highest court of the state, the term "creditors," as used in § 496, Kentucky Statutes 1903, which declares that no mortgage shall be valid against purchasers without notice or creditors until recorded, does not include antecedent creditors or subsequent creditors whose claims are acquired with notice, but does include subsequent creditors without notice who, by diligence, secure a specific lien before the mortgage is recorded; but that court has not specifically decided whether the term includes subsequent creditors without notice who have not so secured such lien.
The circuit Court of Appeals having held that, under the decisions of the highest court of the state bearing on the question, the term "creditors" as used in § 496, Kentucky Statutes, 1903, does not include subsequent creditors without notice who have not secured a lien on the property prior to the recording thereof, and this Court not being able to say that such construction is wrong, held that the title of the holder of an unrecorded chattel mortgage on property in Kentucky is valid and effective as against the trustee in bankruptcy as to the creditors who became such after the mortgage was given and who had not fastened any lien on the property prior to the proceeding in bankruptcy.
The facts, which involve priority of claims against the bankrupts' estate, are stated in the opinion.
attachment, or otherwise. The mortgagee, in making proof of its claim, asserted a lien under the mortgage and sought priority of payment out of the proceeds of the property covered by it. The claim was allowed, but the district court, being of opinion that the mortgage was invalid as against the subsequent creditors without notice, held that it gave no right to priority of payment as against them. The mortgagee appealed to the circuit Court of Appeals, and that court, taking the view that the mortgage was valid as against those creditors, since none had secured any specific lien upon the mortgaged property, sustained the right to priority asserted by the mortgagee. 174 F. 127. The trustee prosecutes the present appeal.
"Claims which, for want of record or for other reasons, would not have been valid liens as against the claims of the creditors of the bankrupt shall not, be liens against his estate."
"No deed or deed of trust or mortgage conveying a legal or equitable title to real or personal estate shall be valid against a purchaser for a valuable consideration without notice thereof or against creditors until such deeds shall be acknowledged or proved according to law and lodged for record."
It is apparent from the language of § 67a and from the decisions of this Court in York Manufacturing Co. v. Cassell, 201 U. S. 344; Thomas v. Taggart, 209 U. S. 385, and other like cases that the effect to be given to the unrecorded chattel mortgage must be determined by the recording law of the state, and it is also apparent that the question arising under that law turns upon who are included in the term "creditors" in § 496.
of the state have not been uniform, but it is conceded, and is evident upon an examination of the more recent decisions, that the term does not include antecedent creditors or subsequent creditors whose claims are acquired with notice of the unrecorded mortgage, but does include subsequent creditors without notice who, by their diligence, secure a specific lien upon the property, as by execution or attachment, before the mortgage is recorded. Baldwin v. Crow, 86 Ky. 679; Wicks v. McConnell, 102 Ky. 434; Clift v. Williams, 105 Ky. 559; Bowles v. Jones, 123 Ky. 395; Swafford's Adm'r v. Asher, 105 S.W. 164. And so the question for decision is reduced to this: does the term include subsequent creditors without notice who have not secured such a lien?
"On the one hand, the unrecorded lien is upheld as against creditors who cannot be presumed to have given credit upon the faith of the property held in lien. On the other hand, creditors who may be presumed on such faith to have given credit are protected as against the secret lien in the rights which they secure by their diligence in the levy of their execution or attachment."
as said before, there is nothing to show that any debt of the estate was created after the purchase of the teams, except that of appellant, who had actual notice."
As Wicks v. McConnell was cited as sustaining this statement, it is not probable that the court regarded it as overruling or departing from what had been said in that case, and this view receives added support from the fact that the opinion in Swafford v. Asher was marked by the court, "Not to be officially reported." These considerations, coupled with the further fact that, in cases such as Bowles v. Jones, supra, where subsequent creditors prevailed over such a mortgagee, the court was careful to state not only that the claims of the creditors arose after the date of the unrecorded mortgage, but also that the creditors had obtained attachment or other liens upon the mortgaged property before the mortgage was recorded, are persuasive, that what was said in Wicks Bros. v. McConnell should be accepted as reflecting the true construction of § 496 in the absence of some more positive and direct ruling upon the subject by the Court of Appeals of the state. Such was the view of the circuit court of appeals, and we are at least unable to say that it was wrong. It follows that, as here the subsequent creditors had not fastened any lien upon the property covered by the mortgage prior to the proceedings in bankruptcy by which the title passed to the trustee, the mortgage, although unrecorded, was valid and effective against them.


Attorney: Paul D. Clement argued the cause for petitioners. Elaine J. Goldenberg argued the cause for the United States, as amicus curiae, by special leave of court. Thomas C. Goldstein argued the cause for respondents.
The Securities Litigation Uniform Standards Act of 1998 (Litigation Act or Act) forbids the bringing of large securities class actions "based upon the statutory or common law of any State" in which the plaintiffs allege "a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security, " 15 U.S.C. §78bb(f)(l). The Act defines "covered security" to include, as relevant here, only securities traded on a national exchange. §§78bb(f)(5)(E), 77r(b)(1).
Four sets of plaintiffs, respondents here, filed civil class actions under state law, contending that the defendants, petitioners here, helped Allen Stanford and his companies perpetrate a Ponzi scheme by [134 S.Ct. 1060] falsely representing that uncovered securities (certificates of deposit in Stanford International Bank) that plaintiffs were purchasing were backed by covered securities. The District Court dismissed each case under the Litigation Act. Although the certificates of deposit were not covered securities, the court concluded, the Bank's misrepresentation that its holdings in covered securities made investments in its uncovered securities more secure provided the requisite "connection" (under the Litigation Act) between the plaintiffs' state-law actions and transactions in covered securities. The Fifth Circuit reversed, concluding that the falsehoods about the Bank's holdings in covered securities were too tangentially related to the fraud to trigger the Litigation Act.
The Litigation Act does not preclude the plaintiffs' state-law class actions. Pp.1065 - 1072, 188 L.Ed.2d, at 99-106.
(a) Several factors support the conclusion that the scope of §78bb(f)(1)(A)'s phrase "misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security" does not extend further than misrepresentations that are material to the decision by one or more individuals (other than the fraudster) to purchase or sell a covered security. First, this interpretation is consistent with the Act's basic focus on transactions in covered, not uncovered, securities. Second, the interpretation is supported by the Act's language. The phrase "material fact in connection with the purchase or sale" suggests a connection that matters. And a connection matters where the misrepresentation makes a significant difference to someone's decision to purchase or to sell a covered security, not an uncovered one, something about which the Act expresses no concern. See Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. __, __, 131 S.Ct. 1309, 1317-1319, 179 L.Ed.2d 398. Further, for the connection to matter, the "someone" making the decision to purchase or sell a covered security must be a party other than the fraudster. Third, the securities cases in which this Court has found a fraud to be "in connection with" a purchase or sale of a security, under both the Litigation Act and Section 10(b) of the Securities Exchange Act of 1934 (which also uses the "in connection with" phrase), have involved victims who took, who tried to take, who divested themselves of, who tried to divest themselves of, or who maintained an ownership interest in financial instruments that fall within the relevant statutory definition. See, e.g., Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 77, 126 S.Ct. 1503, 164 L.Ed.2d 179. Fourth, this Court reads the Litigation Act in light of and consistent with the language and purpose of the underlying regulatory statutes, the Securities Exchange Act of 1934 and the Securities Act of 1933, which refer to persons engaged in securities transactions that lead to the taking or dissolving of ownership positions, and which make it illegal to deceive a person when he or she is doing so. The basic purpose of the 1934 and 1933 regulatory statutes is to protect investor confidence in the securities markets. Nothing in those statutes, or in the Litigation Act, suggests their object is to protect persons whose connection with the statutorily defined securities is more remote than buying or selling. Fifth, a broader interpretation of the necessary statutory "connection" would interfere with state efforts to provide remedies for victims of ordinary state-law frauds, despite the fact that the Litigation Act purposefully seeks to avoid such results by maintaining States' legal authority [134 S.Ct. 1061] over matters that are primarily of state concern, see, e.g., §§78bb(f)(4). Pp. 1066 -1069, 188 L.Ed.2d, at 99-102.
(b) Respondents and the Government make two important, but unavailing, counterarguments. First, they point to this Court's suggestions that the phrase "in connection with" should be given a broad interpretation. But every case in which this Court interpreted the phrase to cover a fraud involved a false statement (or the like) that was "material" to another individual's decision to "purchase or s[ell]" a statutorily defined "security" or "covered security, " e.g., Dabit, supra, at 75-77, 126 S.Ct. 1503, 164 L.Ed.2d 179, and where the transaction was by or on behalf of someone other than the fraudster. Second, the Government warns that a narrow interpretation would curtail the Securities and Exchange Commission's enforcement powers under §10(b) of the Securities Exchange Act, which uses the same "in connection with the purchase or sale" phrase. To the contrary, this Court's interpretation is perfectly consistent with past SEC practice. The authority of the SEC and the Department of Justice extends to all "securities" under §10(b), not just to those traded on national exchanges. 15 U.S.C. §78c(a)(10). The SEC has accordingly brought successful enforcement actions against Stanford and his associates, based on the Bank's fraudulent sales of certificates of deposit-products that are "securities" even if not "covered securities." Neither the Government nor the dissent has pointed to an example of any prior SEC enforcement action that the instant holding would have prevented the SEC from bringing. Pp. 1069 -1071, 188 L.Ed.2d, at 102-104.
(c) Respondents' complaints do not allege, for Litigation Act purposes, misrepresentations or omissions of material fact "in connection with" the "purchase or sale of a covered security." At most, they allege misrepresentations about the Bank's ownership of covered securities. But the Bank is the fraudster, not the fraudster's victim; nor is it some other person transacting in covered securities. Thus, there is not the necessary "connection" between the materiality of the misstatements and the statutorily required "purchase or sale of a covered security." In addition, while the District Court found that one plaintiff acquired Bank certificates with proceeds from the sale of covered securities, the plaintiffs did not allege that the sale of these covered securities constituted any part of the fraudulent scheme or that Stanford or his associates were interested in how the plaintiffs obtained the funds to purchase the certificates. Thus, those sales were only incidental to the fraud. Pp. 1070 -1072, 188 L.Ed.2d, at 104-106.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined.
Paul D. Clement, Washington, DC, for Petitioners.
Elaine J. Goldenberg, for the United States, as amicus curiae, by special leave of the Court, supporting the Petitioners.
Thomas C. Goldstein, Washington, DC, for Respondents.
Daniel J. Beller, Daniel J. Leffell, William B. Michael, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Walter Dellinger, Jonathan D. Hacker, O'Melveny & Myers LLP, Washington, DC, Anton Metlitsky, Leah Godesky, O'Melveny & Myers LLP, New York, NY, for Petitioner.
[134 S.Ct. 1062] Thomas C. Goldstein, Counsel of Record, Tejinder Singh, Goldstein & Russell, P.C., Washington, DC, Phillip W. Preis, Charles M. Gordon, Jr., Preis Gordon, APLC, Baton Rouge, LA, Edward F. Valdespino, Judith R. Blakeway, Strasburger & Price, LLP, Edward C. Snyder, Jesse R. Castillo, Castillo Snyder, P.C., San Antonio, TX, P. Michael Jung, David N. Kitner, Strasburger & Price, LLP, Douglas J. Buncher, Patrick J. Neligan, Jr., Nicholas A. Foley, Neligan Foley, LLP, Dallas, TX, for Respondents.
Adam L. Rosman, Willis Group, New York, NY, Robert M. Lapinsky, Willis North America Inc., Nashville, TN, Paul D. Clement, Counsel of Record, Jeffrey M. Harris, Bancroft PLLC, Washington, DC, Jonathan I). Polkes, Weil, Gotshal & Manges LLP, New York, NY, J. Gordon Cooney, Jr., Morgan, Lewis & Bockius LLP, Philadelphia, PA, Allyson N. Ho, Morgan, Lewis & Bockius LLP, Houston, TX, Bradley W. Foster, Andrews Kurth LLP, Dallas, TX, for Petitioners.
James P. Rouhandeh, Counsel of Record, Daniel J. Schwartz, Jonathan K. Chang, Richard A. Cooper, Davis Polk & Wardwell LLP, New York, NY, for Petitioner.


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Preliminary results of monitoring of the 2010 Local Council Elections | РПГА "Беларускі Хельсінкскі Камітэт"
The activities for the formation of ConECs and TECs were implemented under the Calendar Plan.
It should be observed that the recent amendments to the EC provided for the commissions’ composition being formed by at least 30% of representatives of political parties and other public associations. The analysis of the formation of election commissions showed that the provision was fully implemented. 4,171 representatives of political parties and other public associations (34.7% of the total number of commissioners) were elected members of election commissions. Meanwhile, the number of representatives of political parties remained insignificant: 0.9% in TECs and 6.6% in ConECs. The number of representatives of oppositional political parties is also minimal: 0.12% and 1.4% respectively.
Apart from that, it should be stressed that it were the parties’ members who received the greatest amount of refusals to be elected for the commissions. Out of 149 representatives, nominated by the political parties, 105 persons (70.5%) were elected members of the TECs, with only 25% representing the opposition parties. At the same time, the other groups did not encounter so many refusals: individuals (87.7% elected), representatives of work collectives (95.5%) and members of pubic associations (98%).
The greatest number of members on the commissions represented the Belarusian Party of the Left ‘Just World’ (9 persons in TECs and 48 in ConCECs); the United Civil Party – 4 and 14 respectively; the BSDP ‘Hramada’ – 2 and 3 respectively; the BPF – 0 and 6 respectively. Out of 43 BCD representatives nominated for the TECs only 3 were elected (7%). Meanwhile, the overall rate of election of individuals was 87.7%. This means that it were mainly the ‘loyal’ candidates who were elected members of the commissions.
The rate of representatives of political parties and other public associations on the DECs went up to 50%. At the same time, the number of members of oppositional political parties reached 1.4%. Out of 180 representatives of oppositional political parties 72 persons were elected for the DECs, which is 40% of the nominees. The role of political parties as key agents of election campaigns is still insignificant.
According to observers, the meetings of state bodies who formed the commissions were often far from being transparent and democratic, some of them were held secretly.
For instance, the presidium of the Orsha District Council and Orsha district executive committee refused representatives of the BSDP ‘Hramada’ and the Belarusian Party of the Left ‘Just World’ to attend their joint meeting for the formation of Orsha district election commission, which is a violation of the EC. M.Statkevich, nominated for the Barysau district election commission, was not invited to the meeting of the presidium of the Barysau District Council and Barysau district executive committee. Similar facts were recorded by observers in Baranavichy, Navapolatsk, Babruisk and other towns.
In Hrodna and Salihorsk there were instances when observers were not allowed attending the meetings for the formation of election commissions held by local bodies. Human rights activists believe that, since the EC does not directly prohibits the presence of observers, their observation of the meetings would speak of the transparency and openness of the elections, guaranteed by the EC.
There was no actual consideration of the candidacies nominated for the commissions. The majority of meetings lasted for 15-20 minutes, which included the election of thousands of commissioners. This means that the voting was formal.
While analyzing the composition of the commissions, it should be noted that since the previous elections it failed to undergo considerable changes. According to observers, in many commissions 70-80% of members were the persons who had previously worked as commissioners. The majority of them used to be nominated by work collectives or by collecting of signatures. This time, they were nominated by public associations.
Observers report a number of appeals against refusals to elect for the commissions. All the appeals were dismissed.
On 4 February 2010 Hrodna Regional Court dismissed a complaint lodged by the BSD Hramada’s Regional Office. The court failed to take into account the facts of absence of consideration of the political parties representatives at the meetings and the voting having been held according to a pre-drafted list. The court judgment say: ‘over a half of the commission’s composition is formed by representatives of political parties and public associations, which meets the provisions of Par. 2 of Art. 34 of the EC.’ Similar arguments were mentioned in the decision by Minsk City Court, following the complaints by the BPF and the BPF ‘Adradzhennie’. Human rights activists stress that the essential inaccuracies in the applications submitted by individuals and elected members of the commissions were considered as ‘minor errors’ by the court.
The absence of any definite criteria for the formation of the commissions in the EC, reduced the considerations of complaints to formal inspection of the formation procedures. In fact, the discriminatory nature of refusals to grant membership on the commissions to mainly opposition activists was not considered and evaluated by the courts.
Despite the amendments to the EC, requiring at least one third of representatives of political parties and public associations being elected members of the election commissions, the rate of political parties’ members on the election commissions remained insignificant. The representation of opposition political parties on the election commissions was minimized.
The meetings of state bodies, which formed the commissions, in many cases lacked transparency and democracy, in some areas they were secret.
Like in the previous election campaigns, the formation of election commissions was decided upon by voting for a list of candidates, there was no actual consideration of the candidates at the prevailing majority of meetings. 70-80% of the composition of the election commissions was formed by persons who had earlier worked as commission members.
There were a number of appeals against decisions for the formation of election commissions. Due to the lack of definite criteria for the formation of election commissions in the EC, the consideration of the appeals by the courts was formal. All the submitted appeals were turned down by the courts.
Human rights activists welcomed the changes introduced to Article 61 of the EC, simplifying the procedures of signature collecting in one settlement and the requirements for signature sheets.
One way of nominating candidates is the nomination by a group of citizens (initiative group, campaign team) through collecting of signatures. During this period, the electoral commissions received 16,903 applications for registration of initiative groups, including – 341 groups for the nomination of members of political parties. Most of the campaign team members were formed by such political parties as the Communist Party of Belarus - 111 applications, the BPF - 71, the United Civic Party - 60 applications.
The political parties used the nomination by collecting of signatures, guided by the need for the existence of the parties’ local offices for such an allocation, in accordance with the EC of the Republic of Belarus. One should also take into account the large number of nominated activists of the unregistered BCD Party, for which the only opportunity to participate in the elections was by collecting signatures. Thus, the BCD nominated 204 nominees.
Compared to the local elections in 2007, the number of refusals to register initiative groups has decreased from more than 100 in 2007 to 23 in 2010. These figures show that the election commissions tended not to create obstacles to the registration of initiative groups.
The main reasons for denial of registration of initiative groups were: violation of paragraph 1 of Article 65 of the EC, which requires that the applications for registration of initiative groups shall be submitted by the person, who intends to be nominated as a candidate, as well as violation of the principle of free participation in the elections, enshrined in Article 5 of the EC.
Astravets district election commission for two times refused to register the campaign team of the UCP member Ivan Kruk, who had intended to run for Astravets District Council. Officially, the activist was accused of alleged ‘violation of the principle of free participation in elections’ during the formation of the initiative group. Ivan Kruk discovered that the members of his initiative group had been intimidated by the local executive committee officials, who threatened them with entering in the so-called ‘blacklists’.
In accordance with Part 9 of Article 61 of the EC collecting of voters’ signatures may be conducted in the form of picketing. Obtaining permission for this form of collecting signatures is not required if it is held in places other than those banned by the local executive and administrative bodies.
It should be noted that the majority of the local authorities had taken decision, which restricted the possibilities of collecting signatures in crowded places, substituting them with areas remote from human settlements and traffic, or other locations that are rarely visited by voters. As a result of the decisions by the executive and administrative authorities most applicants did not use this form of collecting signatures, to focus on others.
As an example, we can quote decision №123 by Hlybokaye district executive committee of 09.02.2010: ‘To prohibit the collection of signatures of voters to nominate candidates for deputies of the Local Councils of Deputies in the locations, which impede traffic and pedestrians, at the railway station and the bus station of the town of Hlybokaye, in public transport, educational institutions, institutions of culture, medicine, retail outlets and other places, which contribute to the living activities of the district residents.’ Similar bans were adopted in the towns of Beshankovichy, Verkhniadzvinsk, Talachyn, Lepel, Shumilina, Pastavy, Haradok, Orsha and Navapolatsk.
The procedure for collecting signatures is regulated by Art. 61 of the EC, which prohibits the involvement of the administration of organizations in the collection of signatures, as well as coercion in the process of collecting signatures. The Resolution of the Central Commission regulates the collection of signatures in the territories of military units and dormitories. Thus, the collection of signatures in the army can only be done in consultation with the commanders of military units, and in the dormitories – with regard to the requirements of internal regulations. This rule has in effect restricted the collection of signatures by initiative groups in certain areas, but in practice this meant that members of initiative groups of the nominees could not get there.
A nominee of the Belarusian Social Democratic Party(H) Leanid Padbiaretski could not enter hostel ? 1 of Kuliashou Mahiliou State University to collect signatures there. The administration of hostel ? 4 of Skaryna Homel State University ruled to prevent collecting signatures in the dormitory, referring to a number of resolutions on internal regulations in the dormitories, and also to some explanations of the EC by the Central Commission.
Observers recorded facts of pressure on members of initiative groups to force them to discontinue their participation in the elections as members of initiative groups of pro-democratic candidates. The leader of the Minsk regional office of the youth organization of the United Civil Party ‘Young Democrats’ Artsiom Ahafonau waived his nomination as a candidate for deputy of the Luban District Council. He gathered the necessary number of signatures, but refused to submit the signature sheets to the district election commission because of the pressure on teachers, who were members of the initiative group, among them the Artsiom’s wife Nadzeya Ahafonava.
In Babruisk on 2 March the local department of the KGB for three hours interrogated the leader of Babruisk Social Democrats Yury Hryniavitski, who was a member of the initiative group for nominating his fellow party member Andrei Stasialovich. The official reason for the interrogation was the conference of the Social-Democrats in Druskininkai, held in late February. Mr. Hryniavitski says the interrogation is tied to his participation in the initiative group on nominating Stasialovich.
Observers draw attention to the constant pressure used by administrations of enterprises and educational institutions against candidates and members of their campaign teams. The current election campaign is marked by an increased pressure by the authorities, especially ideology departments of local executive committees, the police and other law enforcement bodies, used against members of opposition political parties and public associations running for the local councils.
According to observers, pressure was used against N.Sotnikava (Vitsebsk), U.Kachahur, pastor of the ‘New Generation’ church (Navahrudak). T.Zaitsava, head of the ‘Your Choice’ rehabilitation center (Kalinkavichy). Babruisk member of the initiative group for the creation of the BCD Viachaslau Sheleh, running for the Babruisk Town Council, was on the orders of Vice-Chairman of Babruisk town executive committee Mikhail Kavalevich threatened with dismissal. A.Kabiak, Baranavichy member of the initiative group for the creation of the BCD, was fired by his employer.
In accordance with Part 2 of Article 65 of the Electoral Code the refusal to register an initiative group can be appealed. Such complaints were scarce. There were only a few positive decisions on the appeals. The Electoral Commission met the complaint, lodged BY I.Kruk, although the timing for the appeal had already expired, and the Electoral Commission reversed the decision by Astravets district commission. Homel Regional Election Commission met a complaint by an activist of the unregistered BCD party, running for Kalinkavichy District Council, Tatsiana Zaitsava.
After the formation of TECs and ConCEs, many human rights activists were nominated for observation at the electoral commission. There were cases of refusals of registration (HR defender A.Matskevich by the Barysau District Election Commission) and refusals to provide full and comprehensive information.
On 22 February an observer of the Belarusian Helsinki Committee Raman Yurhel was not allowed to attend the meeting of Vishniavetskaya constituency election commission №12 for elections to the Hrodna Regional Council.
The registered BHC observer Sviatlana Rudkouskaya experienced pressure by officials of Hrodna Leninski District B.Fiodarau, U.Kuzmiankou, A.Arkhipau. On 3 March the Administrative Commission of Leninski district of Hrodna fined the independent observer Sviatlana Rudkouskaya. Sviatlana Rudkouskaya disagreed with the charges and considered it as the administration’s harassment for her participation in the election campaign.
The registration of candidates for deputies of Local Councils is regulated by Art. 67, 68 of the Electoral Code. Article 68 of the Electoral Code was amended, which provided the nominees the right to study the results of verification of the application for registration. The amendment is significant, since earlier in case of refusal to register it was virtually impossible to submit a justified complaint because of the reluctance of election commissions to provide verification results that had become the reason for the refusal.
Observers stress that the election commission meetings to verify the documents submitted for registration of candidates could not be attended by observers registered in these commissions. Just like before, the process was closed and not transparent. Apart from that, there were recorded cases of refusals by the electoral commissions to provide access to materials of the verification. Therefore, one can conclude that the election commissions failed to be guided by the provisions of the EC during verification procedures.
During the 2010 local elections the number of refusals to register candidates is lower than that in the previous elections. Opposition political parties nominated 297 candidates, of which 57 members were refused registration, which is 19.1% of the amount nominated by political parties. It is necessary to take into account that political parties generally nominated their representatives by collecting signatures, so the failure rate is less than the total figure nominated by the pro-democratic political parties.
25,035 persons were officially registered candidates for deputies of local councils, 318 persons were refused registration, 122 withdrew their applications. Refusals to register amount for only 1.27% of the total number of candidates. Thus, a deputy seat in the average is claimed by an average of 1.2 persons.
513 registered candidates are members of political parties, which is significantly more than in the previous local elections, when the comparable figure was only 177 people. The Belarusian Party of the Left ‘Just World’ is represented by 99 registered candidates out of 126 nominated representatives, the United Civic Party - 77 out of 94; the BPF - 33 out of 35, the Belarusian Social Democratic Party (Hramada) - 29 out of 32, the BSDH - 2 out of 2 representatives. The CPB has 199 registered candidates, the LDPB - 48, the Republican Party of Labor and Justice – 7, the Belarusian Agrarian Party - 2; the Belarusian Social Sports Party - 2; the Republican Party - 1; the Patriotic Party - 1 representative.
The peculiarity of this election campaign is the large number of uncontested constituencies where only one candidate was nominated. For example, 55 candidates in 30 constituencies will run for the Hrodna city council, 14 districts being uncontested. Among the candidates, 14 are members of opposition parties. In the vast majority of constituencies in Barysau district the elections were non-alternative. One of the few exceptions - constituency number 15 - the only one where three candidates were registered. The BPF member and activist of the movement ‘For Freedom’ Dzmitry Babitski competed with two state officials – the director of the Barysau Polytechnic College Uladzimir Shmakau and the director of the ‘Lesakhimik’ open joint-stock company Valiantsin Shkaruba.
Analyzing the data on registration of candidates for deputies of local Councils, it can be seen that the competition remained exclusively in Minsk, where one seat is claimed by 3.9 candidates. In other areas of Belarus the competition is not more than 1.2 people per seat.
Township and rural constituencies were also predominantly non-alternative. For example, Brest, Homel, Vitsebsk, Hrodna and Minsk region rural and township councils were competed by 1-1.1 people per seat. The situation was a slight different in Mahiliou region, where rural and township councils were run for by 1.8 candidates per seat.
Analyzing the refusals of registration, it is obvious that the vast majority of such failures were passed upon the pro-democratic candidates. Most of the unregistered candidates represent the organizing committee for the creation of the BCD Party. Out of the 173 party’s applicants who submitted documents for registration as candidates only 82 candidates registered. The majority of the candidates appealed against the refusals at higher commissions.
Representatives of other political forces, who were denied registration, also appeal against such refusals. Viktoar Hirshkevich, member of the United Civic Party, appealed the denial of registration as a candidate for the Brest City Council of Deputies. The reason for refusal was that the applicant resides in the territory of Kobryn district, and was also registered as a candidate there. In accordance with Art.60 of the Electoral Code of Belarus candidates for deputies of Local Councils may be nominated by citizens residing or working in the territory of the respective Local Council.
One of the main reasons for refusals of registration was invalid signatures of voters during the nomination of citizens by their initiative groups through collecting signatures.
It was due to this reason that Uladzimir Tseliapun, member of the BPF(Mazyr, Homel region) was unjustly denied registration… The Secretary of the Mazyr district election commission number 65 presented two signature sheets filled out by a member of the initiative group, who failed to write the name of the town - Mazyr – in these signature sheets in the column ‘Residence’. Palesskaya street may be possibly found in other cities and towns with the same house numbers and same last names of citizens.
However, in accordance with Art. 61, par. 15 of the EC ‘if the signature sheet, submitted to a district commission, contained signatures of voters residing in different districts, towns of regional subordination, districts in the city (town), examination and accounting shall only be applied to the signatures collected on the territory of the district, city (town), district in the city (town), where the commission who received the signature sheets had been formed. The remaining signatures are not verified and not taken into account.’ Thus, the Commission should not have taken into account these signatures, instead of declaring them as invalid, which influenced the decision to refuse registration.
1. In general, the registration of the initiative groups, and later that of the candidates were more democratic and transparent than those in the previous election campaigns.
2. Observers recorded pressure from the authorities, public enterprises and institutions used against the initiative group members of representatives of democratic parties and organizations, as well as against the nominees to force them refuse to participate in the election campaign. There were a number of recorded inadmissible facts of politically motivated dismissals from work.
3. Observers recorded the facts of closeness of the electoral process, when the examination of applications for registration were closed and opaque.
4. The state media did not in fact cover the stage of nomination and registration of candidates for deputies.
According to Art. 4 of the Electoral Code, the citizens of the Republic of Belarus, political parties and other public associations, work collectives, the candidates’ proxies have the right to free and full discussion of the election programs of candidates, their political, business and personal qualities, to campaigning for or against a candidate at meetings, rallies, through media, as well as during meetings with voters.
Article 74 of the Electoral Code guarantees the candidates for deputies an equal right to speak at election and other gatherings, meetings, in the press, on public radio.
Art. 73 of the Electoral Code guarantees equal rights and responsibilities to all the candidates and forbids the use of the advantages of official position for election activities.
Under current election law, canvassing by candidates and their proxies can be carried out in three forms: campaigning through printed materials, mass media and through public events and meetings with voters.
In accordance with Art. 45 of the Electoral Code of the Republic of Belarus, candidates have the right to produce campaign posters, addresses, statements, slogans, leaflets, photographs (posters). The cost of producing of posters for the candidate for the Minsk Regional and Minsk City Councils of Deputies are covered by funds from the budget of 8 basic units (BYR 280,000), for the candidates of the district, town (towns of regional subordination) councils of deputies - 4 basic units (BYR 140,000) and for the candidates of the urban (towns of district subordination), settlement and rural councils of deputies - one basic unit (BYR 35,000).
In the conduct of elections, local executive and administrative bodies in accordance with the relevant committees allocate places most frequented by citizens in the territory of the polling stations, for placing printed campaign materials. Executive and administrative authorities may prohibit the placement of printed campaign materials in non-designated locations.
According to Art. 48 of the Electoral Code, political parties, other public associations, other organizations, the citizens of the Republic of Belarus cannot have other material assistance in the preparation and conduct of elections, except for donating money to an off-budget fund (the money received by such a fund are divided equally among all candidates). The person nominated for candidacy should not use cash or other material assistance in violation of these requirements, which can result in a refusal to register the candidate or cancellation of the candidate’s registration.
The creation of a candidate's election fund is not provided by the Electoral Code. In accordance with the latest changes to the Electoral Code of the Republic of Belarus, the creation of such fund shall be provided only during the elections of deputies of the House of Representatives and the President of the Republic of Belarus. In connection with this, the production of all information materials by candidates for deputies of local councils, as well as the conduct of the entire campaign in general, is carried out exclusively for the money allocated for these purposes from the budget.
Accordingly, the election campaign of candidates for deputies of local councils has been held in the same legal conditions as the previous election campaigns.
The small amount of funds provided by the current electoral law for the manufacture of printed campaign materials has had an evident effect on the visibility of campaign during the elections. The funds granted by the budget could only cover the printing of printed campaign materials, which were located in the areas designated for this purpose by local authorities (on information stands). There was a deficiency of other types of printed materials (leaflets, invitations to meetings with voters), resulting in the lack of a full-fledged campaign and disseminating of information about the candidates, their programs among the voters. As a result, the campaign was generally invisible, especially in the regions.
A striking example is the campaign of the candidate Paulouski. The funds allocated for canvassing to the candidate for the Mahiliou city and regional councils was only enough to print the campaign materials for 20% and 40% of the electorate constituencies respectively. ‘Considering that there are 15 000 voters in my regional constituency, then I could only cover about 40% of voters with the materials. As a candidate the Mahiliou City Council of Deputies I was also provided with certain funds, which was only enough to print 1,500 leaflets and 10 posters of the same quality. Considering that there are 7,000 voters in my constituency, then this amount is very small, and it can cover only 20% of voters,’ said the candidate.
In some cases, there have been documented cases of censorship of informational materials prepared by the candidates. The role of censors was played by local executive authorities, the relevant district and territorial election commissions, and in some cases - the organizations that entered into appropriate civil contracts for the manufacture of the printed materials. Some organizations required prior agreement on the texts of leaflets by the relevant local executive committees.
On 16 April, a candidate for the Vitsebsk Regional Council Mikalai Petrushenka filed a complaint with the prosecutor's office of the town of Orsha against Orsha town executive committee. The point was that the candidate decided as part of his election campaign to print 10,000 copies of in the Orsha Printing House. The text of the leaflets contained information on the time of addresses on the radio by other candidates from the opposition. However, the printing house informed the applicant that all the leaflets could be printed only in agreement with Orsha Executive Committee. Mr. Petrushenka asked the prosecutor with a request to give a legal evaluation for such censorship and approval of materials by candidates.
On 6 April, the manager of Mazyr State Printing Company ‘Kalor’ Mr. Dyliuk rejected a candidate for the Homel Regional Council Uladzimir Tseliapun in the printing of his campaign materials, claiming that ‘he cannot print it, otherwise they will take away his license.’ The day before, on 5 March, the candidate drew a contract for the printing of posters and leaflets with the printing firm, and wrote a letter of guarantee for payment. The agreement and the protocol of price coordination were carried to the local election commission, who was to approve them to guarantee the transfer of funds for printing of the products. The candidate asked the manager of ‘Kalor’ for an official response to the refusal to print the campaign materials. The candidate appealed the denial by the printing firm and the inaction of the constituency election commission to remedy the situation. On 15 April, Uladzimir Tseliapun received a copy of a letter from the Homel regional election commission, where the commission’s deputy chair Mr. Usau explained the meaning of Art. 45 part. 11 of the Electoral Code to the constituency commission. Namely, that the candidate has the right to produce campaign posters, leaflets and photographs. The legislation does not provide for any rights or obligations to exercise censorship. The candidates can independently prepare the texts and, in accordance with Art. 49 of the Code, shall bear civil or another, as provided by the law, liability as a result of breaches of the requirements for campaigning or the content of campaign materials. However, the penalties may only be imposed after the printing of the materials.
On 8 April, a candidate for the Brest Region Council running in Yaminskaya constituency #21 A. Kuzniatsou submitted the layouts of his leaflets, posters and stickers to the ‘ArtLine’ Brest printing company. The company reported that they had received a call from the head of the ideology department of Brest Regional Executive Committee, L.P. Lemekh, who spoke negatively of Kuzniatsou ‘s leaflets. After that, ‘ArtLine’ refused to print the candidate’s campaign materials. Zmitser Shurkhai, coordinator of the BCD Brest Regional office, noted that the territorial election commission, including A. Lemekh, saw the designed leaflets and did not approve the text for the reason that the candidates adheres to the views of Christian Democracy and published a respective electoral program. After the refusal the candidate’s proxies went to the executive committee and pointed Mr. Lemekh to the responsibility for such intervention in the electoral process stipulated in the Electoral Code. However, ‘ArtLine’ refused to print the materials. The manager reported that he had received another call from the head of the ideological department, but assumed the responsibility not to publish the candidate’s materials.
The private printing enterprises of Homel for various reasons refused to print the leaflets of independent candidates. A candidate for the Homel Regional Council, coordinator of the BCD party Sviataslau Shapavalau was told by a representative of one of the private enterprises that there were secret orders not to print some leaflets, and avoid talking to the candidates who wanted to order this kind of products. ‘The private enterprises, and we visited three of them, send us back to the state-owned ‘Palesdruk’ enterprise. But the case is that I wanted to publish the leaflets in the form of stickers, and ‘Palesdruk’ cannot perform such an order. Meanwhile, the private enterprises, which can technically do it, refuse to do so,’ explained Mr. Shapavalau.
In Minsk there were recorded instances where employees of local housing departments removed campaign materials posted on notice boards at the entrances to houses. Thus, in Berastsianskaya Street in Minsk’s Partyzanski District in Pershamaiskaya constituency №56 the employees of housing department №12 removed the campaign leaflets of the candidate Vadzim Kanapatski. They argued that they had received orders from the department’s master Maryna Viktarauna to remove from the boards in the yards all the information that did not deal with the housing service. It is a violation of the Minsk City Executive Committee’s decision №475 of 25 February, 2010 ‘On the definition of Minsk locations for campaigning for the elections to the Minsk City Council of Deputies of the 26th convocation’. At the meeting of the election commission of Partyzanski district a committee member Andrei Tserashkou raised the question of the unlawfulness of the housing department’s actions. His statement was recorded in the minutes and the commission ruled to promptly send letters to all the housing departments of Partyzanski District, reminding about the rights of candidates guaranteed to them by the law.
In accordance with Art. 46 of the Electoral Code of the Republic of Belarus, the candidates for deputies of Local Councils of Deputies, political parties, labour groups, citizens, who nominate candidates, have a right to equal use of public media since the registration of candidates. State media, as well as the media, financed from the national and local budgets, as well as the media, one of whose founders is a state body or organization, are required to provide equal opportunities to for election speeches of candidates campaigning for the elections. Addresses are provided to the candidates on an equal footing. The time of the address and the procedure for its provision are regulated by Decision №19 by the Central Commission of Belarus for Elections and Referenda of 18.02.2010.
With regard to non-state media, their role in covering of the elections was insignificant. This is primarily due to the general state of independent media in Belarus. Most of the registered independent media were excluded from the public distribution system back in 2006 and are still inaccessible to the general reader.
State-owned newspapers, national and local ones, did not actually cover the election and limited the coverage to printing of official reports by election commissions and the decisions of the executive committees on the elections. Information about the candidates and their programs did not appear in state-run press in many regions for a long time. The exception is the appearance in the local media of materials about the heads of enterprises, who were nominated as candidates or reports by the deputies. The materials covered their activities as state servants or deputies, but these materials appeared in local state media right after the registration of these persons as candidates.
National newspapers did not print the campaign materials of independent candidates, despite the fact that all candidates, political parties and citizens who are nominated as candidates are entitled to have access state media.
A candidate for the Mazyr District Council Frantsishak Viachorka submitted his electoral programme to the newspaper ‘Zhytstsio Palessia’ (founders - Regional Executive Committee and Council of Deputies), and enclosed an application for publication. On 5 April, he received a reply from the editor Larysa Chornaya, according to which F. Viachorka was denied publication by reference to Art. 75 of the Electoral Code: ‘The program of the candidate should not contain propaganda of war, calling for a violent change of constitutional order, undermining the territorial integrity of the Republic of Belarus, to incite social, ethnic, religious and racial hatred, insults and slander against officials of the Republic of Belarus, other candidates, the Presidents of the Republic of Belarus, and deputies.’ The words ‘insults and slander against public officials’ were underlined. F. Viachorka believes that the failure is associated with a number of critical statements in his program.
The current electoral law only provides for candidates’ addresses on the radio as a campaigning means through the media during the local elections. And only for candidates who are running for regional and Minsk city, district, town (towns of regional subordination) council of deputies. Observers stress that campaigning through the radio did not appeal to many listeners today. Most of the population listen to FM-stations and watch television programmes. In cities, candidates' speeches on the wired radio can be equated to the technology of yesterday. Candidates who are nominated in the cities lose a large number of potential voters, because the wired radio almost came out of the scope of everyday use. Thus, candidates have the legal right to use public radio and to communicate their election platforms to the voters, but the modern unpopularity this type of media and a small audience of listeners provide the minimum result to their addresses.
Observers recorded instances of arbitrary censorship of candidates’ radio speeches. For instance, in the town of Beshankovichy, Vitsebsk region, the radio speech of the candidate for the District Council - a local teacher and BCD member Heorhi Stankevich - was recorded, but the district election commission did not allow its broadcast. Mr. Stankevich was explained that the district election commission had rebuked his address because of the fact that ’he may label the other candidates for the District Council, and the content of the speech does not deal with the programme of the candidate.’ The speech by the candidate dealt with the salaries received by the representatives of the authorities, and those of ordinary citizens. Also, Mr. Stankevich said that the elections are a myth - since in each constituency only one candidate is running and only a few constituencies there is an alternative. Mr. Stankevich appealed the ban.
The amendments to the Code affected campaigning by holding of mass events.
The existing legislation previously treated the holding of public events (meetings, rallies, demonstrations) to campaign as the actions that are regulated by the Law of the Republic of Belarus ‘On Mass Events of the Republic of Belarus’, with the sole exception that the local executive and administrative bodies shall receive an application for holding such an event 5 days before it, and the answer was to be issued 2 days before the date of the canvassing event. This practice was changed, and a separate Article 45-1 was introduced to the Code, which currently regulates this form of campaigning. This article governs the procedure for holding public events organized by the candidates in the locations specified for that purpose by the local executive bodies in accordance with the relevant election commissions.
Another possible means of agitation is holding meetings in the premises, as well as meetings with voters. In accordance with Par. 7 of Art. 45 of the Electoral Code of the Republic of Belarus, local executive and regulatory bodies in consultation with the relevant election commissions determine the premises to host meetings with the candidates, as well as pre-election meetings organized by the voters. In accordance with the guidelines of ‘The organizational and legal issues of activities by territorial and constituency election commissions for elections of deputies of Local Councils of Deputies of the Republic of Belarus of the twenty-sixth convocation’, approved by Resolution №1 by the Central Election Commission of Belarus of 12.01.2010, the election commissions have the responsibility to inform the voters through the media or otherwise about the date and place of meetings with candidates, his or her proxy, or a meeting organized by citizens.
In practice, in determining such places local administrative bodies do not adhere to the principle that they should occur in the places most visited by the voters. Also, the determined locations for mass events would often be not found in each constituency of the Council. In fact, in big cities a few places were chosen, and in some cases - only one.
This led to the fact that in most constituencies the candidates had no place for campaigning by holding public events.
Participants of the monitoring repeatedly complained to the CEC that the local executive authorities had not determined enough locations for meeting with voters. The Central Commission recommended that local authorities reviewed the decisions. Such complaints were filed against the decisions by the executive committees of Baranavichy, Salihorsk, Mahiliou, Masty. As a result, local authorities specified additional locations for campaigning. Meanwhile, the Central Commission in its responses to complaints wrote that the Electoral Code did not provide for mandatory identification of such places in each constituency. This is a serious shortcoming of the current legislation because the candidates were often forced to hold meetings with voters in locations determined by the local executive committee, located outside the constituencies in which they were running, and where their voters lived. This often rendered such meetings meaningless.
For example, the candidate for the Hrodna Regional Council Zmitser Kukhlei addressed the CEC with a complaint against a decision by Masty District Executive Committee, according to which in the entire district only two locations were authorized for public events. According to the decision of the executive committee, candidates could campaign at a spare pitch of the ‘Nioman’ stadium and on a site for trade fairs outside Masty market. The events could only be held after 15:00. Holding of mass events in other locations was prohibited. The district has 25 constituencies, 12 of which are located in Masty, the remaining 13 - in the countryside. The candidate Zmitser Kukhlei argued in the complaint that the vast majority of candidates are deprived of any opportunities to conduct election campaigning events: meetings, rallies and pickets. This is especially true of those who live in rural areas.
It should also be noted that the authorized locations would often appear to be in the areas not visited by voters, which fell short of the general provisions of Art. 45 of the Electoral Code of the Republic of Belarus. It is obvious that the authorities tried to reduce the canvassing opportunities.
The new rule of law on the declarative principle of public events made it easier to carry out canvassing activities. However, in situations where local authorities chose scarcely populated locations or the locations are situated outside the constituency, in which a particular candidate was running, it could lead to an effective campaign. These legislative innovations in practice have not led to increased opportunities for campaigning and access to information about candidates by the voters.
In accordance with Art. Art. 40, 41, 42 of the Electoral Code of the Republic of Belarus, election commissions of the respective levels are required to assist the candidates and their authorized persons in the conduct of meetings with voters in the premises.
Observers report numerous obstructions by local executive and administrative authorities in the conduct of such meetings. On 15 April, a candidate for the Mazyr District Council Frantsishak Viachorka (Stantsyinaya constituency №25) and a candidate for the Homel Regional Council Uladzimir Tseliapun (Palesskaya constituency №43) held a meeting with voters of Mazyr’s Chyhunachny district. The meeting took place at a site outside the House of Culture ‘40 Years of October’. The candidates were not let inside the House of Culture - at this time instead of meeting the building was occupied by a video show.
During the campaigning there were cases of warnings imposed on the candidate for alleged violations of the rules of holding campaigning events. On 15 April, Vitsebsk city's electoral commission issued an official warning to a BCD activist, candidate for the City Council, running in Tekhnalahichnaya constituency №9 Uladzimir Ramanovich.
The participants of the monitoring also recorded the case of revocation of the registration of the candidate Volha Karach for distributing balloons and calendars among voters, which was considered as bribing of voters by the election commissions.
At the same time, it must be noted that there were no other cases of cancellation of registration of candidates for violations of the electoral legislation. In fact, the commission limited their sanctions to warnings, which also were scarce.
1. Changes to the electoral laws, which simplified the legal regulation of public events and meetings with voters, in practice failed to result in the expansion of the electoral campaigning opportunities and the facilitation of canvassing. This was not achieved at the expense of unreasonable restrictions to the scope of places for mass events imposed by the local executive and administrative authorities.
2. In general, there were not a large number of warnings to candidates issued by the election commissions. There was only one case of deprivation of registration for violation of canvassing procedures.
3. The financial resources that were allocated from the budget for printing of campaign materials, were not enough, which affected the visibility of the campaign in general.
4. There were cases of censorship of the texts of information materials by the local executive committees, election commissions and the companies that have printing licenses, as well as cases of censorship of candidates’ radio speeches by the broadcasting companies.
5. In general, the election campaigning by candidates was very limited, and, as a result, it was not visible to the voters.
Under Art. 53 of the EC, voters have a right to vote early – not earlier than five days before the election day, under conditions which rule out the possibility of any control over a free expression of the electors' will. The law does not require official justification of reasons for the elector’s inability to appear at the polling station on the day of the election. During the early vote campaign, chair of the election commission or his (her) deputy shall draw up daily minutes, the copy of which shall be posted in the divisional election commission for public inspection.
Just like in the previous election campaigns, early vote was extensively used during the 2010 local council elections.
The authorities still applied the practice of coercion against students to force them take part in the early vote. The administrations of higher educational institutions encouraged them by providing an extra day-off on 24 April. Such cases were recorded in the colleges of Babruisk, the Pushkin Brest State University and other universities.
The local executive authorities were ordered to maintain early vote activities, making use of various kinds of means. As a rule, representatives of administrations were delegated to polling stations as observers to exercise control of the employers’ turnout, both during the early vote and on the day of the election. Babruisk town authorities used advertising in the public transport for these means.
On the first day of the early vote campaign, voters, employers of a food processing factory in the village of Padsville, Hlybokaye district, were transported to the polling station in a bus and paid their salaries only after they cast their ballots.
M.Hil, ex-candidate for the Pastavy District Council, claims that the employers of the local ‘MMK’ state-owned enterprise were also transported to polling stations.
As a result of mass enforced early vote campaign activities, according to the data provided by the CEC, 2,059,230 voters (29.3% of the overall number of voters) voted early. This is 37% of the overall turnout. In Minsk, the figure is even higher – 40%.
An interesting trend was noted in early voting in Maladechna. As of 23 April at the polling stations with both pro-state candidates and opposition candidates, the results of turnout amounted to more than 30%. In the uncontested constituencies the turnout was less than 5%.
In Minsk’s Sukharauskaya constituency №30, on the first day of early voting at the poling stations with observers working, the turnout was much smaller than the turnout in the stations where observation was not conducted. A similar trend was reported by observers from other regions.
It is worth noting that the results of early voting are considerably different from those of the voting day. M. Sharstsiuk, who observed the counting of votes at polling station №15 in Polatsk, said that the results of a separate vote counting showed that after the early voting and the ‘home vote’ all the votes were given for the pro-governmental candidate. At the same time, on the election day, the candidate of the ‘Just World’ party, according to official figures, received at least 10% of votes.
A member of the BPF and activist of the movement ‘For Freedom’ Z.Babitski was one of the candidates who appealed the results of elections for the Barysau District Council of Deputies in constituency №15. According to the observer A. Matskevich, the majority of voters who voted on the election day, cast their ballots for Babitski. However, the overall vote count, including those cast in the early vote, showed that the election was won by his rival, Director of the Barysau State Polytechnic College U. Shmakau.
A similar situation was experienced by the candidate Viachorka. He won the early election at polling station number 74: for him - 112 votes, for the current deputy of the Minsk City Council U.Halaburda - 79. However, V.Viachorka lost to Halaburda after the final vote count.
Observers note that copies of the results of early voting were not posted at all polling stations. The commission of polling station №46 of Studentskaya constituency of Homel refused to post the record of the early voting results, or provide an opportunity to study to the candidate for the Regional Council of Zhukouski.
During the voting on 25 April observers recorded numerous violations of electoral laws: issue of several ballots to one person upon presentation of several passports, voting by one person for all family members, casting ballots by members of election commissions and so on. At polling station №44 of Stantsyinaya constituency of Mazyr, where F.Viachorka was running for the local council, at about 19 o’clock, two members of the commission cast about 10 ballots into the ballot box.
A gross violation of Art. 68 of the EC was recorded by observers in Maladechna district. The results of voting on the day of the election showed that the four candidates for the Chysts Rural Council of Deputies: Siarhei Miroshnikau (constituency №12), Halina Kurylovich (constituency № 1), Alena Ulchyts (constituency №3), Stanislau Bazhko (constituency №7 ) were also members of the local DECs. S. Miroshnikau - a member of DEC №72; H. Kurylovich - Chair of DEC №73, A. Ulchyts - Secretary of DEC №73, S. Bazhko - a member of DEC №74.
In accordance with Part 20 of Article 68 of the EC, ‘the authority of the person nominated as the candidate for the Local Council of Deputies, which is member of the Central Committee, constituency, territorial, divisional election commissions, is suspended from the date of registration of his or her candidacy in the election.’ The candidate for the Chysts Rural Council of Deputies Uladzimir Zvernik filed complaints against the violation in Maladechna district prosecutor's office and the CEC.
The EC regulates in detail the procedure of opening the ballot boxes, counting of votes, the recognition of invalid ballots, and so on. After the counting of votes, a meeting of the divisional commission shall be held, which determines and records in the minutes the results of the counting of votes. The minutes, in addition to the above data, indicates the number of ballots received by the election commission, the number of spoiled ballots, unused ballots. A copy of the minutes, after it is signed by the commission, shall be posted for public inspection.
Analysis of observers’ reports shows that the counting of votes was carried out with serious violations of the principles of transparency.
Observers were not able to directly observe the counting of votes. In most cases, observers were assigned to seats, which were at a distance of 3 to 10 meters from the table at which the members of election commissions conducted vote counting. Some observers applied for an opportunity to observe the counting of votes in the immediate vicinity of the table, but the applications were rejected.
Those who tried to come to the table, were immediately turned out of the premises, in some cases with the help of the police. For example, 5 minutes after the start of counting of votes on orders by the chair of the local DEC the police officers Haponau turned out the observer of the Mahiliou Human Rights Center A. Kolchyn out of polling station №12 of Tekstylnaya constituency №36. He insisted on monitoring the count near the table at which the procedure took place, but not at a distance of several meters.
A similar fact was recorded at polling station №6 in Orsha. At approximately 19.30 on 25 April, the station was visited by the candidate for the Orsha Town Council of Deputies, a member of the BPF, A. Kaminski. He said that he arrived to observe the counting of votes. However, the DEC chair, along with the on-duty police officer prevented him from entering the premises during the vote counting and turned him out.
It should be noted that in most polling stations, where observations were made, there was no separate counting of votes. At 65% of the stations, the results of vote counting were not announced.
The provision for declaring results of the separate counting of votes is an innovation in the electoral legislation. Although the CEC took an absolutely unequivocal position on the application of Part 2 of Art. 55 of the EC, according to which it is necessary to announce the results of a separate counting of the votes, unfortunately, the CEC had not taken adequate measures for the interpretation of this rule. The methodical recommendations for DECs simply duplicated the provisions of the EC and did not explain what was meant by these terms. In practice, this led to different interpretations of this rule and a situation in which most of the commissions announced only the general results of the counting of votes.
Observers state that everywhere during the counting of votes the principle of collegiality of the DECs was violated: each member of the commission counted only his or her share of the ballots. Counting was carried out simultaneously by all members of the commissions. The results of the counting were silently put down on sheets of paper and handed over to the chair of the commission. The figures were summed up by the chair and recorded in the minutes. When signing the minutes, the commission members did not control the accuracy of the results stated, because in fact they could not see the count, which was conducted by other members of the commission. Some observers were admitted to the tables where the counting of ballots was conducted, but they were faced with the impossibility of actually observe the counting of all individual members of the commissions.
At many stations, observers recorded instances of the use of pre-drafted minutes. Such a case, in particular, was recorded at polling station #113 in Brestskaay constituency #16 by S. Srednikau, proxy to Maslouski, a candidate running in constituency #16 in Brest. The final minutes (blank) was previously signed by all members of the election commission, with the exception of the chair. Maslouski filed a complaint in the Brest City Election Commission.
The observers also recorded cases of violations of the principle of openness and transparency of the elections during the transfer of the minutes with the results of voting to higher commissions. L. Markhotka, observer at the Salihorsk District Territorial Election Commission, was ejected from the meeting of the commission. At 20 o'clock, when the committee members gathered to receive documents from the divisional election commissions with the results of the vote, the committee chair Yakimovich ordered the observer to leave the premises and announced that he would be invited directly to the meeting of the commission, which was to begin at 00-00. Referring to Art. 13 of the EC, according to which elections are held openly and publicly, L. Markhotka refused to obey the orders of the chair. The police turned the observer out of the building of Salihorsk district executive committee, where the territorial commission’s office was located.
1. During the election of local councils of deputies of the twenty-sixth convocation the authorities repeatedly used the practice of coercion to vote early. In the practice of ‘encouraging’ to the early voting administrative resources were actively used.
2. Like in the previous election campaigns, observers had little opportunities to observe the counting of votes. Some of them were admitted to the tables where the counting of ballots was conducted, but they were faced with the impossibility of actually watching the simultaneous counting by all individual members of the commissions. The requests for an opportunity to observe the counting of votes in the immediate vicinity of the table were not met. This constitutes a violation of the principle of transparency and publicity of the elections.
3. Separate counting of ballots was not conducted at 50% of the stations, where observation was carried out. In many cases the ballots were counted together. At approximately 65% of the stations, at which observation was maintained, there was no announcement of the results of the separate vote counting.
4. There were cases of casting of ballots by members of the DECs.
5. At many stations, the copies of minutes were not posted for public inspection or were posted only at the request of observers.
6. ‘Home voting’ was conducted in violation of the procedure provided by Art. 54 of the EC.
7. Observers, registered in the territorial commissions, were denied the right to be present during the procedure of the submission of papers by the divisional commissions.
Monitoring of the elections to Local Councils of Deputies of the twenty-sixth convocation showed that the changes, recently introduced to the EC, to some extent contributed to the approximation of the national electoral law to democratic standards. This primarily concerns the abolition of the severe restrictions in the nomination and registration of candidates. However, the lack of transparency in the verification of applications for the nomination of candidates still enabled the election commissions to apply discriminatory approaches to some candidates.
In general, the campaign was characterized by the same spirit as the previous campaigns, with no significant qualitative changes in favour of the democratization of the electoral practices.
Just like in the previous election campaigns, the election of deputies of Local Councils of Deputies of the twenty-sixth convocation was marked by a serious systemic retreat from democratic standards for which the Belarusian authorities have repeatedly been criticized.
Thus, the recommendations on the democratization of the electoral process, issued by the OSCE/ODIHR on the basis of the campaign ‘Human Rights Defenders for Free Elections’, are still extremely topical.

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Art. 34
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Art.60
Art. 61
Art. 4
Art. 73
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Art. 45
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Art. 75
Art. 45
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Art. 53
Art. 68
Art. 55
Art. 13
Art. 54