On the Problem of Preclusive Character of Electoral Terms

Abstract

The article considers one of the aspects of the temporal measure of the election process: the preclusive nature of the terms of electoral procedures (electoral terms).Determining the legal nature of electoral terms is of great practical importance. It is generally accepted that terms are preclusive if they must be strictly adhered to, i.e. these terms cannot be extended or renewed. Any actions that were to be committed during such a period have no legal consequences if they are committed after its expiration. Some election terms are recognized as preclusive by the law. The lack of a normative provision on the possibility of extending or renewing other election terms, together with the awareness that the election process is fast-paced and irreversible as well as the analogy with the terms recognized as preclusive, provides grounds for law enforcement bodies to extend this feature to all election terms. The article considers one of the aspects of the temporal measure of the election process: the preclusivenature of the terms of electoral procedures (electoral terms).Determining the legal nature of electoral terms is of great practical importance. It is generally acceptedthat terms are preclusive if they must be strictly adhered to, i.e. these terms cannot be extended or renewed.Any actions that were to be committed during such a period have no legal consequences if they are committedafter its expiration. Some election terms are recognized as preclusive by the law. The lack of a normativeprovision on the possibility of extending or renewing other election terms, together with the awareness thatthe election process is fast-paced and irreversible as well as the analogy with the terms recognized aspreclusive, provides grounds for law enforcement bodies to extend this feature to all election terms.Judicial practice demonstrates various approaches to understanding the nature of different election terms. Although their preclusive nature is declared, it is not followed in all cases. Therefore, there exists a problem to search for a criterion that would allow to divide the terms of the implementation of certain election procedures by the relevant subjects of the election process into preclusive ones and those being mandatory but extendable. To find such a criterion, we used a comparison of two similar situations related to passive suffrage during the national elections – the nomination of a candidate and deciding regarding his registration.The difference between the conditions of the corresponding procedures is that the candidate being he holder of passive suffrage acts on his own initiative, i.e. at his own discretion submits documents for registration, while the opposite party (election commission), registering the candidate, acts on duty, having imperative power to consider these documents and make decisions on them in accordance with the requirements of the law. This is the reason for the difference in the nature of the terms for the corresponding procedures.Thus, the election terms are preclusive if they are related to the actions taken by the subjects of the election process at their own discretion, including for the exercise of their own rights. At the same time, the terms set for the obligatory actions aimed at ensuring the rights of other entities, although mandatory (violation of which is qualified as being illegal), but they cannot be considered preclusive.