The question “who is worthy to be chosen?” from time immemorial was the cornerstone for the development of any democratic system. Each system responded to it in accordance with the needs of society. Only men capable of holding weapons. Only those who own the land. Taxpayers only. Only literate. It took hundreds of years and an intense struggle for electoral rights to move to the now generally accepted universal and equal system of elections, where the right belongs to a citizen without distinction of gender, nationality, social status and much more.
All this time, the expansion of the categories of citizens receiving electoral rights was perceived as a progressive phenomenon. But some restrictions have always been, are and will be. No electoral system gives the right to elect and be elected to citizens who have been declared legally incompetent by a court. Those held in places of deprivation of liberty by a court verdict are almost universally deprived of their voting rights. And almost everywhere it is implied that participation in national elections requires citizenship. That is how they differ from local elections or, for example, elections of deputies to the European Parliament.
Restrictions on the right to hold certain positions for persons who have committed criminal offenses are also a common measure of protection for a normal state governed by the rule of law. Citizens of many countries have learned in practice that waiting for a person to commit an offense can be too expensive. And if we are talking about persons holding positions in the public power system, it is fatally expensive. As a result, the majority of countries on this issue take quite conservative positions.
Articles L6 and L7 of the French Electoral Code provide for exclusion from the electoral lists by court verdicts, as well as restrictions on voting rights for 5 years in relation to those convicted of certain crimes. The court can apply restriction of electoral rights as an additional punishment. In accordance with § 45 of the Criminal Code of the Federal Republic of Germany, the deprivation of passive suffrage is carried out for a period of 2 to 5 years. By a decision of the State Tribunal of the Republic of Poland, a person who has committed a crime related to violation of the constitution or laws may be deprived of both active and passive suffrage in all types of elections (paragraph 1 of article 23 of the Law “On the State Tribunal” of March 26, 1982 .). In the United States, in most states, serving a prison term is not automatically established in the electoral law at all – both in the right to elect and to be elected.
Separately, we can say about crimes in this area. In Great Britain, an offender is deprived of his passive electoral right for 10 years throughout the country for unlawful pressure on voters, exceeding the maximum size of election expenses, bribery, falsification of documents on the nomination of a candidate. Illegal practices – for example, violations in the coverage of the election campaign – are followed by the deprivation of the passive suffrage for 5 years in the territory of a particular electoral district.
Each country identifies threats and provides a legal response to them. The timing is different, the meaning is the same – society wants to make sure that a person does not allow a relapse, and he can be trusted again. Therefore, it is strange when the restrictions associated with elective offices are called into question. Even if persons who have committed especially grave crimes – rape, premeditated murder, embezzlement on an especially large scale – can return to normal life after release, society still needs time to understand whether they have reformed or are cleverly pretending. The attempts of some fighters to say that they should be given the right to be elected are all the more provoking public rejection. Note that the prisoners themselves do not talk about this – probably, understanding the attitude of society towards them and their sins.
The Skopinsky maniac, who recently “reclined”, dressed up for the sake of courage in a cap with the symbols of the opposition parliamentary party, is not only disgusting. This is a reminder that in the absence of restrictions, such subjects sometimes come to power. So restrictions are a reasonable measure of social protection. They are also supported by the fact that society wants to know who is going to become a deputy: it accepts, for example, information about the presence of convictions with approval. And the facts of their concealment, which are encountered at every election, testify in favor of public disapproval: if everyone did not care, why hide them.
There are nuances with dual citizenship. In a number of countries, such a restriction is not prescribed, because the passport of another state puts an end to the career of a public politician. Such a political culture. At the same time, the requirement for the absence of foreign citizenship is established, for example, in the legislation of Bulgaria, Venezuela, Latvia, Azerbaijan, Colombia, Australia, Mexico and others. There are also broader interpretations. In Australia, a citizen cannot be elected who is subordinate to foreign states or has the rights or privileges of citizens of foreign states.
Requirements for candidates in national elections to have no dual citizenship, introduced in recent years, are not uncommon. They are explained by the unwillingness of foreign interference in internal affairs. In particular, this was the motivation behind the ban on the nomination of persons with dual citizenship in the elections in Moldova.
The citizens of Russia, having voted for the amendments to the Constitution, decided that persons with dual citizenship should not be deputies. People who live in two countries, withdraw capital abroad and use foreign financial instruments do not inspire confidence in society. Legislative consolidation of norms and their implementation during the elections showed that the majority of potential people’s representatives agree with this. Although some have doubts: what if they do not choose what to close the business abroad. But here you can decide – business abroad or deputy in Russia.
Restrictions on the right to be elected are different, each country has its own, sometimes incomprehensible to us, associated with historical tradition. In Egypt, for example, persons disgraced from the civil service cannot be elected. A US presidential candidate (historically a country of immigrants) must be born in the country. In France, the qualification of “serving the fatherland” is established: they do not elect people who evade conscription into the army. But there are limitations associated with the challenges of our time. In 2009, Kazakhstan and Poland introduced a criminal qualification aimed at preventing persons with a criminal record from entering power.
It is possible to come up with universal electoral standards – no country will accept them unconditionally. In Germany, for all political associations that are not represented in the federal or state parliaments, there is a preliminary selection procedure. Like this: the bureaucrats considered the “application” – and minus half of the parties, they were not even allowed to collect their signatures. The German Central Election Committee decided the fate of the small parties that wanted to take part in the elections to the Bundestag in the fall of 2021. As a result, out of 87 candidates, only 44 were admitted to the elections. Among them, the Communist Party of Germany – it was refused for the first time since 1967. The explanation is that the application “did not arrive on time”. Democracy is diverse. And somehow there was no OSCE reports.
And the last thing. The worst kind of speculation is speculation in historical memory: when they look for an “analogue” in history (for example, the notorious “disenfranchised”) and try to present to us what was, for what is. A withered scarecrow of the past is being pulled onto the modern globe of elections, overturning the arguments of law, history and common sense.
Author – Deputy Director of the Institute of History and Politics of the Moscow State Pedagogical University, Candidate of Historical Sciences, expert of the NOM Association
The editorial position may not coincide with the opinion of the author