As Moscow City Duma opposition candidates get sent to jail for protests, will they be able to keep fighting for a place on the ballot?

On July 29, a group of district courts in Moscow issued jail sentences to Ilya Yashin, Konstantin Jankauskas, and Alexander Solovyov, all of whom have attempted to register as candidates for the Moscow City Duma and been rejected for what they say are political reasons. Dmitry Gudkov and a number of other would-be opposition candidates for the capital’s citywide legislature may also face jail time. All of the candidates have been charged in connection with the mass protest that gripped Moscow on July 27: 1,373 people were arrested during the course of the event. Most of the candidates are also in the midst of an appeal process to have their candidacy applications reconsidered, and the glimmer of hope that process offers was one of the factors driving protesters into the streets on the 27th. Now, some of the opposition candidates’ supporters are worried that their jail sentences may eliminate what little chance they had of winning their appeals to run for office, which is the protesters’ primary demand. We asked Grigory Melkonyants, who co-chairs the “Golos” (Voice) election rights movement, whether those concerns are justified and why. His response is translated below.

Most of the candidates whose registration applications were rejected currently have appeals open at the Moscow City Election Commission stage. The commission’s stance, which has been to stop all of the candidates from registering on principle, is surprising. That said, hope springs eternal: I won’t rule out the possibility that some candidate or other might get a favorable ruling, if only just to demonstrate that it is possible for different candidates to get different results. Moreover, it’s obvious that the candidates who are not allowed to register at the City Election Commission level will continue to take their appeals further up.

It seems to me that on the next level the appeals would reach, which is the [national] Central Election Commission, there is a real chance that at least some of the candidates would have their registration petitions restored. There’s a fighting chance, in my view. The process [at the Central Election Commission] is significantly different, and the Commission can organize the process however it wants. For example, it could set a high standard for examining this particular kind of appeal. That’s all even more likely given the public outcry surrounding the Moscow City Duma elections.

The jail sentences would be one of the biggest problems in that situation: they could become a serious obstacle in the appeal process.

First of all, candidates are obligated to sign appeals in person at the Central Election Commission building. It’s theoretically possible to allow attorneys to bring the appeal documents to the candidates’ jail cells for them to sign and then bring the documents back to the Commission.

Formally, submitting an appeal that was signed in absentia is not allowed. However, we can’t rule out that in this situation, Russia’s Central Election Commission would prioritize the spirit of the law in order to promote voters’ rights. They could decide not to train their attention on that particular detail. [Rejecting a candidate by] citing their inability to sign papers in person while they are in jail is obviously a bad PR position in the current situation.

But even in that situation, the candidates would practically be deprived of the ability to prepare adequately for their appeals. They would not be able to participate in the evidence-gathering process, in the process of developing their legal arguments, and so on.

And then there’s another important problem: the candidate would not be present while their appeal is considered by a Central Election Commission working group, and they would not be present during the Election Commission hearing itself. Those are two very important stages. The working group studies the materials in detail and formulates a position that often becomes a basis for the decision made by the commission as a whole. During the hearing, that decision is announced, but it’s practically impossible to go through hundreds of blocked signatures within that time span. During both the working group meeting and the final hearing, the Central Election Commission is obligated to invite a representative to defend its position. They’re also obligated to invite the candidates, but whether the candidates can or can’t come and why is another matter.

There are three ways this problem might be solved. Two of them — well, it’s hard to say which one sounds more fantastic. The first option is for the unregistered candidates to be let out of jail during the working group meetings and full commission hearings. The Central Election Commission could contact law enforcement agencies and make a request to that effect. The second option is that the hearings could be transferred right into the holding cells so as not to deprive the candidates of their right to a proper defense. The third option is for the Central Election Committee to allow the candidates’ representatives to attend the meetings and the hearings even though that’s not allowed by law at this stage: after a candidate’s registration application is rejected, all of their official representatives lose their status as official representatives.

Personally, I think it’s highly likely that the appeals will be considered without the candidates present even though the candidate’s presence in those meetings is mandatory. The candidate can affect the course of the proceedings by answering questions or clarifying various points. If the candidate is not present, they won’t have anyone to ask — and you can’t rule out the possibility that their interpretations of the evidence will lean against the candidate.

Isolating the unregistered candidates from their own appeal processes is like an early Christmas present for anyone who doesn’t want the Central Election Commission to side with those candidates. But now, everything’s in the commission’s hands. However they want things to be, that’s how they’ll operate in this situation.