3.2.4 Complaints and Allegations

What are complaints and allegations?

In this section, complaints and allegations refer to accusations that someone has broken the rules governing political finance. The term 'complaints' could also be used in situations where it is suggested that the oversight institution itself has not acted appropriately, but those situations should be dealt with by the institution's own complaints procedure.

Even when you, as an oversight institution, provide advisory services, there will be times when the rules might be broken.

There are different ways to handle complaints and allegations depending very much on a country's legal framework and traditions. In a significant number of countries, rules regarding the handling and examination of complaints and allegations are spelled out in a code of / law on administrative procedure. In these countries, the guiding principles, the examination and review process and the appeals mechanism are stipulated in a legal act. In other countries, the procedures regarding the handling and examination of complaints and allegations are encompassed in the political finance legislation or fall under the regulatory powers of the oversight institution. We recognize the diversity of legal and procedural systems pertaining to the submission and dealing with complaints and allegations and some mechanisms or concepts described below will not be relevant to your system.

It is not just legal and procedural systems that vary from country to country, so can the terms used. In some legal systems, complaints are formal documents that must be lodged with a court or tribunal, and allegations (sometimes called denunciations) are requests that can be filed with an institution/ administrative body. In countries where complaints must be filed with a tribunal or court, often the oversight body will only be responsible for dealing with allegations. In other countries, no distinction is made between complaints and allegations and often the oversight institution's remit is broadly drafted to encompass all suggestions of wrongdoing. Even for this latter category, there may be significant variations. For example, in some countries the oversight institution must pass criminal matters to the police or prosecutorial authority for investigation. In other countries, the oversight institution might defer cases involving criminal breaches until the conclusion of the criminal proceedings. You will need to select the information most relevant to your own jurisdiction from the material in this section. The terms "complaint" and "allegation" are used interchangeably in this section, and we leave it to the reader to determine what practice pertains to their legal system.

Who can make a complaint or allegation?

Complaints/allegations can be an important means for oversight bodies to learn about possible breaches of law/regulations. Therefore, it is good practice that the least restrictions possible be placed on who can make an allegation. Encouraging allegations as much as possible does carry some risks, but there are other ways to manage this than by restricting who can make an allegation.

Questions may arise as to whether you should accept anonymous complaints/allegations. The first consideration is whether the applicable legal framework addresses the permissibility of anonymous allegations. If the legislation bans them, you may need to consider whether and under what circumstances the issues raised anonymously could be addressed ex officio. For example, if accusations in an anonymous complaint are supported by publicly available information, is your institution at liberty to begin a review on its own initiative without reliance on the anonymous complaint? One could argue that where a power is inherent in your authority to act ex officio, to ignore such information would require your institution to turn a blind eye to violations of the law.

Where there is no legal prohibition on anonymous allegations, you may need to consider whether to accept complaints from unidentifiable sources. There are both advantages and disadvantages to accepting them. Some complainants may wish not to be identified for good reasons, e.g., fear of reprisal. On the other hand, allowing anonymous allegations can also encourage groundless allegations submitted for political reasons. In the US system, complaints must be signed and sworn to under penalty of perjury. In the UK, some complaints must be dealt with by the police, and increasingly police forces are asking complainants to make a formal statement rather than accepting a letter. In both cases, the rationale behind such stringent requirements is to make complainants think carefully about whether they wish to be accountable for the complaint they file.

With an effective preliminary assessment or triage process in place however, groundless allegations can be identified and dismissed; a blanket refusal to accept any anonymous allegations risks excluding important information about non-compliance with political finance laws. If you do accept anonymous allegations you will need to consider how they can be made - most electronic or online methods will not be truly anonymous because the denouncer could be traced, and some people may therefore not trust those methods.

How will you allow complaints or allegations to be made?

Complaints or allegations can be made in many ways, and it is important to be clear which ways are allowed in your jurisdiction. It is common to require complaints or allegations to be in writing, so that there is no dispute over the content, which could happen if it is accepted via a note of a phone call. But it is important to consider whether anyone might not be able to make a written complaint or allegation (for example because of a disability, or language difficulties), and have an alternative method to achieve a written record, agreed with the complainant, available if needed. Such an obligation is legally imposed in many jurisdictions. It may mean allowing a complainant to come to your office to relay orally their complaint which you then transcribe into the required written format.

It is common to accept complaints or allegations by email, and some countries have recently developed other electronic methods such as dedicated portals/ platforms specially designed to receive them. See for example the complaints system used by the Electoral Commission of Albania while the Lithuanian Central Election Commission uses a "advertising trap" portal. 

It is good practice that ways of making complaints or allegations are as accessible as possible. Allowing only one method might exclude some people (not everyone has reliable internet access), and you should also consider this in terms of any relevant equalities requirements. It is therefore recommended to allow as many ways of making a complaint or allegation as the oversight body can effectively manage.

Admissibility of the complaint / allegation?

On receipt of any information that may constitute a complaint or allegation, you will need to establish quickly whether the matter falls within your institution's jurisdiction. For instance, if the complaint/ allegation is about breaches of social media regulation and that media monitoring does not fall under your competence but is part of the media regulator's remit, then the complaint should be forwarded to the competent institution as quickly as possible.

In general, it will be a matter for the competent institution to consider the matter under their own jurisdiction and it will not be necessary for you to analyse the matter further at this stage. However, depending on any agreements in place with other institutions you may choose to conduct further analysis and provide this to the other institution.

If the matter falls within your jurisdiction, you may choose to make a preliminary assessment to decide what is the most appropriate way to deal with it.

What will you tell people who make complaints or allegations?

It is good practice, and in some countries a legal requirement, to both register and acknowledge all complaints and allegations received that meet the formal requirements (Country example - Latvia.pdf). This should be done in a timely matter, meaning either within the time set by law or within a reasonable target established by the oversight body. With emails or online portals this process can sometimes be automated. You will need to consider how much information to include, but it is helpful to confirm the complaint or allegation has been received, explain what will happen next (for instance you might explain the complaint or allegation will be considered in line with policy, and provide a copy of, or link to, the policy) and when the person can expect to hear from you again.

Where you establish that the matter needs to be referred to another institution of competent jurisdiction, it is good practice and courteous to tell the complainant this. It is also worthwhile to consider having an agreed procedure in place with other institutions, as appropriate, for referrals. Such agreements can help avoid the frustration of referring matters to an institution that cannot or will not act on your referral. Where the matter is outside the oversight body's jurisdiction, but it is not directly referred or the correct jurisdiction is unclear, it is courteous and good practice to suggest possible other relevant institutions to whom the complainant may redirect their concerns. Where the matter does not in fact appear to be within any jurisdiction (for example the behaviour complained about is not in breach of any law, but a question of morality) it is courteous to other institutions to explain this to the complainant, so that the complaint is not then made to other institutions.

Depending on the applicable legislation and your own practice, you may also have to send a copy of the complaint or a summary of the allegations to the party object of the complaint and provide them a deadline to respond. Depending on your country's system, you may have to blank out personal information related to the identity of the complainant (name, address, employment) according to data protection regulations or because the law foresees the possibility for the complainant/ plaintiff to remain anonymous. In any case, this should not prevent your institution from communicating the nature of the alleged violations contained in the complaint/ allegation to the concerned party/ candidate. You may have some discretion about when this information is communicated, depending on the applicable legislation.

Consideration should also be given, if the relevant law, policy or procedure allows it, to whether a complaint will be kept confidential, especially if anonymous and, if so, exactly what will be confidential and for how long. Arguments supporting some level of confidentiality include the adverse impact of publicity surrounding a frivolous anonymous complaint filed right before the election and the interests of law enforcement in being able to not disclose the exact outline of its investigation while it is ongoing. On the other hand, there is an obvious public interest in full disclosure of serious allegations before an election. As the oversight body operating in a politically charged environment, it is important that you develop a policy that addresses how you will handle such issues.

Where you have established that a complaint / allegation is within your jurisdiction, it is good practice (unless prohibited under domestic legislation) to conduct a preliminary assessment. This is a form of triage - to establish whether the matter justifies action and, if so, what the best way of dealing with the matter is (e.g. guidance, warnings or investigation).

It is important that the assessment is in writing, so that you can refer to it later or show how the decision was made. The person conducting the preliminary assessment must also have no conflict of interest, to avoid any suggestion of bias or prejudice. You will also need to consider whether the complainant has any right of appeal against the outcome of the preliminary assessment under your country's legal system and/or your institution's established appeals mechanism.

You can of course choose not to conduct any preliminary assessment and take further action in every matter. And, in some countries the law actually requires every formally valid complaint be investigated. However, there are significant risks associated with this approach. Firstly, it can mean that the oversight institution could become overwhelmed with more matters than it has the resources to manage. Secondly, even if volumes are manageable, it can mean that urgent or high priority matters are delayed by less urgent or important matters. Finally, it can encourage groundless allegations, because the complainant will know that even if the institution eventually takes no action, the fact it has looked into the matter can be used for political advantage. Having a prioritization system that helps sort the complaints and allegations received depending on the nature and severity of the reported breaches/ violations can be of some assistance. In some countries, it can be used to winnow out insignificant cases at the outset. In countries that mandate all valid complaints be actioned, it can at least allow the oversight institution to focus first on the more important cases.

There are many ways in which this assessment can be conducted. You will want to consider what is the right method for your oversight institution. Some institutions use a basic form for the assessment, which sets out the questions and or considerations that need to be addressed but leaves the detailed analysis to the person conducting the assessment - you will find an example of a reporting template here (Preliminary assessment form.pdf). Alternatively, a more detailed analysis can be prescribed.

There are many different factors that can be taken into account in deciding whether a matter merits further action and if so how to deal with it. Below are commonly used examples, but there may be unique factors in any nation.

• Has the institution already assessed, investigated and/or taken enforcement action on the issue or a similar issue?

It is always good practice to check whether the matter has been addressed before. In some cases, it is also useful to check with other institutions.

• Would the complaint/ allegation, if proved, constitute a violation of the law?

Sometimes complaints/ allegations are based on concerns that may have political or moral importance but are not actually against any rules.

• Is there sufficient evidence to justify an investigation?

You will need to think about what is a suitable level of evidence to require. Requiring no evidence at all will encourage groundless allegations, whilst requiring significant evidence will risk genuine concerns being rejected.

• Is the alleged violation time-barred under relevant law or institutional policy?

Many countries have a statute of limitations, meaning that after a defined period of time possible violations cannot be actioned. And whether there is such a statute or not, it may be that as an oversight institution you will want to have a policy with similar effect. It may not be the best use of your resources to be considering possible violations that took place many years ago.

• Is it appropriate to take the matter further?

This is the most complex, and often most significant, consideration. In some countries this can involve what is known as a 'public interest test', a general term widely used to determine whether further action is warranted.

• If so, what is the most appropriate action?

It is important to consider all possible methods for dealing with a complaint/ allegation as part of the preliminary assessment. It is easy to focus only on investigations and enforcement and you may have no discretion, but other approaches can be equally or more effective, if it is open to you to consider them. In some situations it may be more appropriate to deal with a matter by providing guidance or issuing a warning, but it will always depend on all of the facts and circumstances.

For example, where a new political party delivers a donation report in which some figures are slightly wrong, it might be an option to provide some guidance and propose corrective action rather than opening an investigation. On the other hand, where a political party appears to have deliberately tried to hide an illegal donation of substantial value, an investigation is much more likely to be appropriate.

Where a complaint / allegation is rejected for any of the above reasons, it is good practice to explain to the complainant / denouncer the decision taken and the reason for it, and to indicate any right of appeal against the decision they may have.

3.2.4.2 When is it appropriate to take further action?

Whether it is appropriate to take further action can involve a number of considerations, and every case will need to be considered on its own facts, but some common factors that might be relevant are:

• the seriousness of the possible violation(s)

For example, whether potentially deliberate or whether the impact was significant (in terms of sums of money involved, outcome of an election, public confidence, or some other reason)

• the compliance history of the organisation

Is this the first time there has been a potential violation?

• how the violation occurred

Was it due to the responsible officer being absent (ill, or even having died) so something was not done, or a less experienced officer stepped in but made a mistake?

• the time that has passed since the potential breach

It can be difficult to investigate a breach that took place long ago as documentary evidence may no longer exist, and the memories of witnesses may have faded, and there is a risk that it would be unfair to the person accused;

• the co-operation of the subject of the complaint or allegation

When notified of this issue did the subject immediately apologise and seek to put things right?

You may also want to use indicators (like the ones shown in the template below) to determine whether the violations reported are serious enough and sufficiently grounded to trigger further action]. These and other criteria can also be used, if helpful, to consider how complex the matter might be; the priority to be given to it; and in some cases whether it requires particular urgency. See templates for a preliminary assessment form (Preliminary assessment form.pdf) and for substantive analysis form for complaints and allegations (Substantive analysis form.pdf for complaints and allegations).

The severity of the alleged violation/ irregularity is established by using sub-indicators where 1 is the least severe and 3 the most severe violation:

1.1. Number/ frequency of the violation/ irregularity

1.2. Number and identity of involved persons.

1.3. Financial impact (if measurable)

The reliability and accuracy of the sources of information received are established by using sub-indicators where 1 is the least likely and 3 the most likely:

2.1 Reliability of the source of information - anonymous/ signed complaint; supporting documents (photos, screenshots, interviews), substantiated information;

2.2 Accuracy of described violation - original supporting documentation, precise locations of observed violations accompanied by signed testimonies (with names and phone numbers/ email addresses of witnesses), dated photos, screenshots, etc.

The preliminary assessment may also include:

• Seeking further information or clarification from the complainant
• Making initial and limited inquiries of the subject (although great care should be taken not to take any action that could lead to legal challenge)
• Considering information freely available in the public domain. This would include, for example, press articles and relevant websites.