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Strasbourg, 15 November 2000
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CDL-INF (2000) 17
Or. Eng.
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LAW ON PARLIAMENTARY
ELECTIONS
OF THE REPUBLIC OF
AZERBAIJAN
Comments
adopted by the Venice Commission
at its 44th
Plenary meeting
(13-14 October
2000)
Introductory remarks
1.
These
comments are based on the text of the law only, not taking account of its implementation.
Reference may be made on this point to point iii.a of opinion no. 222 (2000) of
the Parliamentary Assembly, which recommends not only "to revise legislation
on elections…", but also that "the next general elections in autumn
2000 can confirm definitively the progress made and their results can be
accepted by the majority of the political parties that will participate in the
elections, and can be considered as free and fair by international
observers". Reference can be made also to the following documents : CG/BUR
(6) 154 Bureau of the Congress (of local and regional authorities of Europe) -
provisional report by the CLRAE observation delegation of the partial local
elections in Azerbaijan held on 26 March 2000; doc. 8256 of the Parliamentary
Assembly, observation of presidential elections in Azerbaijan (11 October
1998); doc. 7430 Addendum III - Addendum III to the progress report of the
Bureau of the Assembly and the Standing Committee, Information report on the parliamentary
election in Azerbaijan (9-13 November 1995).
2.
The
request by the authorities of Azerbaijan asks only for comments on the law on
elections to the Milli Majlis (not including the annexes mentioned e.g. by
Articles 39.3, 40.4 and 42.3) and not on the law on the central election
commission. This opinion will not deal with this law, but it should be recalled
that a fair composition of the central election commission is an important
element of free and fair elections (cf. remarks below on the inferior election
commissions). This opinion will also not deal with the legislation concerning
political parties.
3.
These
comments are based on the English translation of the law on elections to the
Milli Majlis as well as of the Constitution. The authorities of Azerbaijan
provided information on the points the drafters of the opinion had some
difficulty in understanding. Most of these points will not be mentioned in the
present opinion.
4. This
opinion will deal with several points on which the law could be improved, in
particular through careful implementation. The various election commissions,
the courts and other authorities are invited to implement the law in conformity
with international standards. This should make it possible to avoid a large
number of the risks of irregularities mentioned below, even if it will be
preferable to clarify the law in the long run.
1. Election
campaign/media/freedom of expression
It is understood that the CEC interprets the
provisions on election campaigns and the media. In general, the CEC should
interpret the provisions on election campaigns and the media in particular
according to the following principles and remarks.
Freedom of expression and in particular freedom of
the press (Article 10 of the European Convention on Human Rights (ECHR),
Article 47 of the Constitution of Azerbaijan) are of the utmost importance
during an election campaign. Chapter VIII must be interpreted in conformity
with these freedoms, and restrictions to these freedoms must be prescribed by
law, be motivated by the public interest and respect the principle of
proportionality.
In particular, the provisions of Articles 56 and 57
must be interpreted in conformity with freedom of expression. Following
provisions have to be mentioned:
Article 56.1: The expression "rules defined by
the legislation" is very general and should preferably be replaced by
"the law on the mass media and the criminal code". For the time being,
it is understood that the expression used refers only to these laws, which are
not the object of the present opinion.
Article 56.3-5: It is hardly conceivable that such
provisions, which restrict freedom of expression, can ever be "necessary
in a democratic society" in order to preserve one of the public interests
mentioned in Article 10.2 ECHR. It is legitimate, however, that the name of a
person or organisation that is responsible for the publication be indicated in
the material. See also comments on
Article 56.9.
Article 56.9: This provision relates to “false”
material. A reference to criminal law and tort law would be suitable. According
to international standards, prior prohibition is in conformity with freedom of
expression only in exceptional cases. In any case, a prior prohibition must be
decided by a court. Electoral propaganda by its very essence lacks objectivity.
That is why only the courts should be able to prohibit such material, and only
when a criminal offence or a tort is about to be committed. In general, the
limits placed on political speech should be less strict than for ordinary
speech.
Article 57.1: Here again, prohibition should not go
further than what is forbidden by ordinary criminal legislation and tort law.
The incitement to change the constitutional basis of government may be
forbidden, according to international standards, only when it is proposed to
introduce such a change by force. Proposing changes in the constitution is part
of the normal political debate. Incitement to violate the territorial integrity
of the country should also be understood as referring to violent action or to
similarly aggressive methods which pose comparably grave dangers and contradict
the law. In general, the specific nature of political speech during an election
campaign has to be taken into account and the authorities have to be rather
tolerant, in particular the general prosecutor when applying Article 46.5.
Article 57.3: Like all provisions on limitations to
fundamental freedoms, this provision has to be interpreted restrictively; that
means that the only advertisements subject to this provision are advertisements
that let a link with a candidate or a party appear clearly.
Article 57.4: The provision should be reformulated,
or, at least, interpreted so that it is
made clear, first, that the primary obligation of TV companies is to
create conditions for candidates to defend their dignity and honor and second,
that only when clear violations of penal law or tort law occur and no
conditions to defend the honor and dignity exist do sanctions apply. In any
case, this provision must not be misused and must not go further than what is
forbidden by ordinary penal legislation or tort law. If equal conditions are
provided for the lists/the candidates according to law, they will have the
possibility of defending their prestige, dignity and honour and of disproving
misinformation. Electoral propaganda will very often impugn at least the
prestige of the opponents. Prior prohibition is in general contrary to international
standards (cf. comments on
Article 56.9).
Article 57.5: The cancellation of the registration
of a candidate or a political party is a very severe sanction and sufficient
grounds to provide for it are not given. Criminal sanctions for violation of
the law should be sufficient. The courts should take these principles into account
when applying the law.
2. Nomination
and registration of candidates
Article 22.6.2., 34.6, 37.4, 39.3, 40.5, see also
Article 67.3 2nd paragraph: The rules on candidates who have been
sentenced apply to people who have been sentenced for a certain period before
or after their sentence has been served. They look rather complicated. The
provisions on persons with dual citizenship could be in contradiction with
international standards: see below, section 6 Ineligibility/Incompatibility, comments on Article 4.4.
Article 38.2.4: The exceptions provided for by the
legislation of the Azerbaijan Republic "On State Service" should not
leave the door open to inequalities between candidates.
Article 41.2: According to the explanations given by
the authorities of Azerbaijan, this provision applies to people whose
unsoundness of the mind has been authoritatively confirmed by a court upon
proper medical advice.
Article 41.11: This provision has to be interpreted
in such a way that, if there is a sufficient number of valid signatures, it is
no longer necessary to check the other signatures.
Article 43: the scope of this rule is to know
whether the required number of valid signatures has been reached. The only ways
to give a correct answer to this question are either to check all signatures on
the sheet or to count the valid signatures until the necessary number has been
obtained, even if this process is lengthy. What is important is the number of
valid signatures and not the number of invalid signatures. See also comments on Article 43.14.
Article 43.10: The rule of Article 43.7 has to be
applied in that case too, that means that the signature by the person for
him/herself must be considered valid.
Article 43.14: The invalidity of 15 % of signatures
can result from the action of political opponents who introduce invalid
signatures in order to eliminate a candidate or a list. That is why all
signatures should be checked or a minimum number of valid signatures be
determined in order to know how many valid signatures have been collected.
Article 43.14 should therefore be deleted and replaced by a rule which proceeds
from the basis of valid signatures.
Article 43.15: if only 10 or 20 % of signatures are
checked, it will be rare that the number of invalid signatures is so high that
the total number of signatures is insufficient. On the contrary, if all
signatures are checked, such a situation will be more frequent.
In sum, the check of only a part of the signatures
according to the present rules could lead to the non-registration of a list
when the necessary number of valid signatures has been reached (see comments on Article 43.14) as well as
to the registration of a list when the necessary number has not been reached
(see comments on Article
43.15). The only way to avoid such a situation is to check all signatures and
to declare the list of signatures valid when and only when the required number
has been reached. However, for practical reasons, the checking of all
signatures could be stopped when it seems that a sufficient number of
signatures has been reached after checking 10 % of signatures; it is less
serious to register a list with an insufficient number of signatures than not
to register a list with a sufficient number of signatures.
Articles 44.4, 84.2: the CEC should comply with
following guidelines: the list of cases of refusal must be considered as
exhaustive. The rejection of a candidate or a list of candidates should take
place only in rare cases, in conformity with the principle of proportionality.
In particular, in the case mentioned in Article 44.1, only serious violations
should lead to such a sanction (that is, in the cases in which there is clear
evidence to indicate that an insufficient number of signatures would probably
have been reached if these rules had been respected). In the case of Article
44.4.2 and 44.4.4, a time limit should be given in order to correct the
erroneous data. It is necessary to bear in mind that it is much more serious,
from the point of view of democracy, to prevent someone from standing as a
candidate, than to allow someone who has violated some technical provisions of
the law to stand as a candidate. In the latter case, the last word will belong
to the voters. The second part of Article 44.4.3 should be dropped (cf. comments on Article 43.14-15).
Concerning Article 44.4.5, only serious violations should lead to such a sanction;
in the other cases, restitutio in integrum should be ordered, and non-registration
could be a sanction of the violation of such a rule. In Article 44.4.6 again,
minor violations should not be taken into account.
3. Election
commissions
A provision should be included in the law which
obliges the members of election commissions to conduct their office impartially
and not to divulge improperly information which they obtained in the course of
their activity. Since, it would be preferable that the members of election
commissions have no political activity.
Article 19: it must be recalled that the composition
of the Central Election Commission will not be dealt with in this document.
Concerning the composition of lower election
commissions, Article 19.2 provides for the appointment of three members of the
Territorial Election Commission (TEC) by the CEC members representing the
majority party (even if it only has a relative majority), three members by the
CEC members representing the minority parties, and three members by CEC members
representing non-partisan deputies. One of the members of the TEC designated by
the last group has to be agreed by the first group and one by the second group.
Furthermore, majority and minority are defined according to the results of the
vote at the level of the single multi-member constituency, and not according to
the total number of deputies of each party in Parliament. Such an intricate
system is perhaps most suitable in the present situation, but could become
unsuitable in case of changes in the composition of the Milli Majlis (for
example, if there are very few independent deputies, or if the majority is
composed of several parties). It would be preferable to enact rules in the
future which are likely to function notwithstanding a particular composition of
the Milli Majlis.
Article 20: similar remarks to those made with
respect to Article 19 apply.
Article 22.6.3: the term "disability"
should be interpreted restrictively and be applied only to conditions which are
of comparable gravity to mental incapacity.
Article 22.7: during the election period, a period
of ten days for replacing a member of an election commission appears to be too
long. For example, according to the new Albanian law, the time-limit is 48
hours.
Article 27.2: The practice regarding the
participation of observers should be as liberal as possible. Relevant
authorities should normally take into account proposals by organisations mentioned
in Article 27.3 and send invitations in accordance with these proposals.
Article 27.12: this provision must be applied in
conformity with the principle of proportionality.
Article 28.9: the election commissions should
preferably sit only when all their members have been appointed, unless
nomination of some members did not take place within the normal time-limits due
to non-cooperation of the appointing or proposing body.
4. Data
protection
Articles 7.4, 15.9, 63.4,
63.6, 79:
The law deals on several
occasions with the use of state automated information systems. According to the
information given by the authorities of Azerbaijan, for the time being, a state
automated information system has not yet been created. Computer systems are
used only for calculation purposes. As soon as such an information system
exists, these provisions should be made more precise in
order to be in conformity with Article 32.3 of the Constitution.
The following indications can already be given on
how to deal with the question of data protection after the creation of a state
automated information system.
The
constitutional provision (Article 32.3) does not allow
the use of information relating to a person's life without consent. If
exceptions are admitted, they should at least be based on a clear legislative
provision. Such provisions exist in the election law, but in order to safeguard
individual rights with regard to the automatic processing of personal data, the
law itself should make clear a certain number of points.
In
particular, it is necessary to define in the law:
·
the exact purposes of the collection of the data;
·
the sources and the catalogue of the data which can be
consulted by the election commissions; in particular, sensitive data like data
revealing religious beliefs, ethnic origin, political opinions, criminal
convictions, health or sexual orientation and which are of no interest for
electoral purposes should be excluded from consultation (see Article 6 of
Convention ETS N° 108); only data which are necessary should be open to
consultation if provided for by the law and according to appropriate safeguards.
An indication on data which can be collected appears for example in Article
41.7;
·
the time period during which the data are kept; personal
data should not be kept longer than is necessary for fulfilling the original
purposes of the collection;
·
the individual’s rights of access to and rectification
of the data concerning them;.
·
the appeals and sanctions available in cases where the
data were collected or used for a purpose other than the purpose of the law.
Data
protection concerns principally physical persons. However, it might be useful,
therefore it could be envisaged to extend it to legal entities (as mentioned in
the law) (this may depend on the interpretation of Article 32.3 of the Constitution).
5. Appeals
The law does not provide for a clear and
straightforward appeals system. It should be revised in order to be more
coherent.
The question of judicial appeals is mainly dealt
with by the law "on courts and judges" which was not at the disposal
of the drafters of the present opinion; at any rate, in order to make the
reading of the law easier, it would be preferable to mention all the appeals
available, judicial and non-judicial, in a special section of the electoral
law. For example, the expression "the relevant court" (Articles 44.7,
85.3, 85.4) could be avoided and replaced by the indication of the competent
court. The authorities of Azerbaijan have confirmed that appeals are always
open against a decision of an election commission to the superior election
commission - up to the central election commission -, and that appeals are also
possible against a decision of an inferior court to a superior court, up to the
supreme court. Furthemore, the deadlines for appeals are not shorter than in
other fields. Electoral legislation is actually one of the fields in which
appeals must be dealt with as quickly as possible: this principle is given
concrete expression by Article 83.12, for example.
Article 17.3, 18.6, 44.7: there is a choice for the
voter between appealing to a superior election commission or to a court. This
could lead to contradictory decisions of election commissions and courts.
According to the interpretation given by the authorities of Azerbaijan to
Article 129 of the Constitution, the decisions of the courts would prevail in
that case (cf. Article 83.11 of the law). If simultaneous appeals to an
election commission and to a court are admitted, the appeal to the election
commission may be useless and may overload this authority.
Article 83.10 does not seem to be consistent with
Article 83.3, on the one hand and
Articles 17.3 and 44.7, on the other hand. According to the authorities of
Azerbaijan, there is a choice between appealing to a court or to a superior
election commission.
According to the explanations given by the
authorities of Azerbaijan, the Constitutional court, when acting under Articles
85 of the Constitution and 75 of the election law, deals only with the formal
validity of the documents submitted to it by the central election commission.
Ordinary courts have the competence to deal with appeals on other points.
Article 85 allows ordinary courts to cancel the
results of the elections without any deadline if irregularities are found. The
authorities of Azerbaijan informed us that such a rule applies only when new
facts appear, so that a ground for retrial arises. It would be preferable to
provide for a deadline after discovering the new facts for asking for such a retrial.
6. Ineligibility/incompatibility
Article 4.4 makes a reference to Article 85 of the
Constitution. However, this provision does not make a clear distinction between
the cases of ineligibility and of incompatibility. This shortcoming could be
partially corrected if the law were more precise on this point.
Article 85 of the Constitution can reasonably be
understood as follows (cf. also Article 56 of the Constitution): Ineligibility
applies to persons whose incapacity has been confirmed by a court and persons
who serve their sentences in places of confinement by a court's verdict.
The other cases mentioned in Article 85 of the
Constitution are cases of incompatibility. Persons who are in State service in
other countries, work in executive or judicial bodies, persons engaged in a
different paid activity…, ministers of religion have to give up these functions
if elected. Persons with dual citizenship have to give up their foreign citizenship
if elected.
Such an interpretation has been confirmed by the
authorities of Azerbaijan.
The provision of Article 85 of the Constitution
compelling persons with dual citizenship to give up their foreign citizenship
if they are elected is linked, according to the authorities of Azerbaijan, to
the transitional period following the dissolution of the USSR. However, at
least in the long run, such a provision could conflict with international standards,
and in particular with Article 17 of the European Convention on Nationality,
which provides that "nationals of a State Party in possession of another
nationality shall have, in the territory of that State Party in which they
reside, the same rights and duties as other nationals of that State
Party". Discrimination against persons belonging to national minorities
has to be avoided. The same problem arises with Article 81.2 of the law and
Article 89.2.2 of the Constitution.
7. Voting
procedures
Article 68.4, 68.6, 70.8, 71.7.3, 71.8.3, 72.2.2,
78.4 last indent: the vote "against all single lists of candidates"
is completely out of the ordinary in established democracies. It is strongly
advised to abolish this possibility, at least in the long run, since it may
lead to challenges of the legitimacy of the elections and may thereby undermine
the democratically elected regime. The authorities of Azerbaijan informed us
that such a provision is linked to the threshold provided for by Article
72.2.1. It would be preferable to give up both rules.
Article 68.13: changes, or at least changes made in
handwriting, should be avoided. They will easily lead to violation of the
secrecy of voting. The deadline for withdrawing lists/candidates should expire
early enough before the elections to allow printing of ballot papers after it
has expired. Another possibility is to publish the list of candidates who have
withdrawn.
Article 68.14: the condition according to which such
a solution is applied "only in exceptional cases" has to be strictly
respected.
Article 70.3 and 70.10: these provisions were
understood as meaning that the possibility of voting up to 10 days before
election day is limited to the cases mentioned in the second sentence of
Article 70.3, whereas in the other cases it is possible only on election day.
The fact of staying in a "remote place" without further incapacity
should not be a ground for using a mobile ballot box. The central election
commission should provide for the cases in which the use of a mobile ballot box
is allowed in "remote places".
Article 70.6:
freedom of vote has to be respected. The way in which a ballot paper has been
cut can allow it to be recognised. The authorities of Azerbaijan explained that
the ballot includes a part which can be easily removed, so this problem would
not arise if the ballots do not include numbers. The simple fact that the
ballot paper has been touched by people other than the voter (including members
of the electoral commission) could lead to violation of the secrecy of vote
(for example, a ballot paper could be slightly torn up, creased, stained…). It
would be preferable to allow the voter to take the ballot paper him/herself and
to give him an envelop in which he/she has to put the ballot or a stamp to be
affixed to a particular part of the ballot paper.
Article 71.10, 72.7, 73.9: it should be clear that,
if a member of the Election Commission was offered the possibility of signing,
but refused to sign, the protocol is nonetheless valid.
Article 72.2.1: the need for such a provision could
be reconsidered, because turnout tends to decrease when elections are repeated.
At any rate, repeated elections should be valid whatever the turnout.
Article 72.2.3: in order to avoid to repeat
elections, the question of tied votes could be settled by declaring elected the
oldest candidate or by drawing lots.
Articles 72.3.1, 73.8.1, 85.2: here it is necessary
that violations could have affected the result. It would be better to state
this expressly.
Article 73.3: since only 25 seats are allocated by
(proportional) voting in the multi-seat constitutency it appears that a 6%
quota is unnecessarily high. The purpose of the quota can only be to ensure
that Parliament is able to form coherent governing majorities. This purpose is
already enhanced by the fact that three quarters of all seats are allocated
through elections in single-seat constituencies, a rule qhich favours bigger
parties. Under the current system it is necessary to receive at least 4% of the
votes in order to obtain one seat in Parliament. If the law aimed to prevent
sengle member representations of parties in Parliament it would therefore have
to set an 8% threshold. Such a threshold would clearly be too high. It is
therefore suggested to lower the threshold to 5%.
Article 73.4: the case in which the remainder for
the last seat is the same for two or more lists should be settled, e.g. by
allocating the last seat to the list with the highest number of votes.
Article 76: this rule applies also to the case in
which a candidate refuses his/her election.
Article 76.1: the time limit provided for by the
last sentence should be reconsidered: it appears very long and might be cut by
half. The same question arises in Article 82.4.
8. Prohibition of foreigners, persons
without citizenship or foreign legal entities from participating in the
elections
Article 11:
This rule should contain a clause that the
prohibitions apply notwithstanding the freedom of expression and freedom of
information. Such a clause would, in particular, be important for those foreigners
who reside in Azerbaijan and who wish to participate in political debates and
election campaigns. As to dual citizens, see comments with respect to section
6 : Ineligibility/Incompatibility.
However, according to the authorities of Azerbaijan,
this rule applies only to financial questions (see chapter IX). It would be
preferable to state this expressly.
9. Sanctions
Articles 7.2, 11.2, 22.8, 86: the sanctions for
violation of the law are not all dealt with in the law. This would be suitable
from a point of view of clarity and legislative technique. Another possibility
would be to make a reference to the criminal code and the code for
administrative offences. The sanctions must in any case be proportionate to the
gravity of the infraction.
Article 84: Article 44 already provides for the
refusal to register candidates and single lists of candidates, Articles 72.3
and 73.7 deal with invalidity of elections.
Article 84.1: Information through the mass media
about violations of the law should be limited to a short publication, if it is
really considered necessary. Otherwise, the election commission could appear to
be biased. The comprehensive information of the public should be left to the
electoral propaganda of the political opponent.
The principle of proportionality has to be
respected. For example, refusal to register based on a very small excess in
expenditure (Article 84.2.5-8) is clearly contrary to this principle. Such a
small excess could even be due to a calculation mistake. The principle of proportionality
has to be respected also in the application of Articles 84.2.11, 84.3 and 84.5.
For example, the mere fact that an agent of a political party violates Article
56.3-4 should not lead to cancellation of registration (see Article 84.3.3).
Art. 84.5. contains the (…) vague expression « abuse » of the mass
media, a term which should be exchanged or must be restrictively interpreted as
encompassing only violations of penal law and tort law (see, in addition,
comments with respect to no. 3, Articles 56 and 57). The authorities of
Azerbaijan declared that Article 84.5 refers only to violation of the law.
Article 85.1-2: do these provisions refer to Article
84 or Article 86 of the law? The last solution would be more logical.
Article 86: it would be preferable to deal with
criminal prosecutions and sanctions in the same law, either in the election law
or in the legislation on criminal or administrative sanctions (cf. Article
86.2). The act of voting or attempting to vote twice could be mentioned.
Article 86.1.6: the term "misinformation"
must be understood in conformity with freedom of expression. This means that
the misinformation must have been brought about intentionally. Cf. comments on Article
57.4.
See also
comments on Article 57.5.
10. Other
points
Article 12.1: This is an important point: it would
be be more appropriate to give a boundary commission the task of drawing the
limits of the electoral districts. See e.g. Article 68 of the new Albanian
electoral code: there, the boundary commission consists of the secretary of the
CEC, the director of the institute of statistics, the head registrar of
immovable property and the director of the centre of geographic studies of the
academy of sciences. The inclusion of a judge could also be contemplated. The
boundary commission would report for final decision to the CEC.
Article 12.2: The distribution of voters residing
abroad among the constituencies should be dealt with in an abstract and more
precise manner in the law itself. According to the authorities of Azerbaijan,
voters residing abroad are distributed equally and proportionally among the
constituencies. It would be preferable to state this expressly and, in that
case, to state that the distribution is done by lot.
Article 14.5: Here too, the "exceptional
cases" should be very few.
Article 20.7, 26.8: It would be suitable to allow
neutral (non partisan) national observers too (e.g. from non-governmental
organisations).
Articles 26.11, 72: observers should have access to
the protocols of the territorial election commission. According to the
authorities of Azerbaijan, this results from Article 26.1 3rd
indent, which has to be interpreted in such a manner that transparency is guaranteed
at this level, since it is very important to provide for transparency at all
levels. It would be suitable to set the deadline for the delivery of the TEC
protocols to the CEC in the law; if not, the CEC should fix a short deadline.
Article 29.1: according to the authorities of
Azerbaijan, this provision has no retroactive effect (see Article 149 of the
Constitution). That means that parties created before the entry into force of
the law, and e.g. in the month following its entry into force, should be
delivered the certificate.
Article 48.11, 84.4: these rules appear very
drastic; apparently, the withdrawal of only one candidate can prevent
registration of a whole list. According to the authorities of Azerbaijan
however, only the withdrawal of all of the three first candidates of the list
(and not of one of these three candidates) can prevent registration. It is true
that the significance of the list for the voter changes significantly when one
of the leading candidates drops out but it seems that this fact will be brought
to the attention of the voters by the election propaganda of the political
opponents. This should be a sufficient check against abuse.
Article 59.4-5: the limits on funds for parties and
blocks of parties appear rather low in comparison with the limits for
individual candidates (Article 59.2-3). However, they could be justified by the
rather limited financial means of most parties.
