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Strasbourg / Warsaw, 11 October 2002
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CDL (2002) 131
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(Venice Commission)
Preliminary Assessment
of the draft Election Code
of the Republic of Azerbaijan
based on
comments by
Mr Georg Nolte
(Venice Commission, Substitute
member, Germany)
Mr Eugenio Polizzi
(Venice Commission, expert, Italy)
Mr Joe Middleton (OSCE/ODIHR, Legal expert)
Mr Rumen Maleev (OSCE/ODIHR, Election expert)
Introduction
At its 45th
Plenary meeting (Venice, 15-16 December 2000), the Venice Commission approved
the programme of co-operation with Azerbaijan which had been proposed by Messrs
Khanlar Hajiyev, President of the Constitutional Court, Mr Ramiz Mehdiyev, Head
of the Presidential Administration and Mr Safa Mirzoyev, Head of the
Administration of Parliament (CDL (2001) 5).
The main lines of the programme followed the
mandate given to the Venice Commission by the Committee of Ministers (CM (2000)
170).
Initially, the Venice Commission discussed
the electoral legislation of Azerbaijan in light of the presidential elections
taking place at that time. Subsequently, an official demand by the Office of
the President of the Republic of Azerbaijan for an expertise of the draft Election
Code, in June 2002, allowed the Venice Commission and the OSCE Office for
Democratic Institutions and Human Rights (ODIHR), to submit this preliminary
assessment on the draft Election Code, in September 2002.
This draft Election Code governs the conduct of referendums and
parliamentary, presidential and municipal elections in one document, with the
rules divided between General and Special Sections. These concern: referendums,
elections of deputies to the Milli Majlis of the Azerbaijan Republic, elections
to the President of the Republic, and municipal elections.
This opinion is based on:
- the Constitution of Azerbaijan;
- the Azerbaijan Draft Election code
(Unofficial translation of IFES 2002);
- the Law on Parliamentary Elections of the
Republic of Azerbaijan (CDL (2000) 65);
- the Comments adopted by the Venice
Commission on the Law on Parliamentary Elections of the Republic of Azerbaijan
(CDL-INF (2000) 17);
- the Guidelines on Elections, adopted by the
Venice Commission on 6 July 2002 (CDL-AD (2002) 13);
- OSCE/ODIHR Preliminary Comments on the Draft
Parliamentary Election Law of the Republic of Azerbaijan, 30 May 2000;
- OSCE/ODIHR Final Comments on the Law on
Parliamentary Elections of the Republic of Azerbaijan, 16 Aug. 2000;
- OSCE/ODIHR Final Report Republic of
Azerbaijan, Parliamentary Elections,
5 November & 7 January, 15 January 2001;
- the comments by Mr. Georg Nolte (substitute
member for the Venice Commission, Germany);
- the comments by Mr. Eugenio Polizzi (Expert
for the Venice Commission, Italy);
- the comments by OSCE/ODIHR experts, Messrs
Joe Middleton and Rumen Maleev.
Comments
in this draft Preliminary Assessment do not take account of the recent
referendum in Azerbaijan. Considering this fact, additional comments could be
provided when a revised text will be submitted to us.
General comments
1.
This Draft Election Code (hereafter: the Code) governs the
conduct of referendums and parliamentary, presidential and municipal elections
in one document, with the rules divided between General and Special Sections.
These concern: referendums, elections of deputies to the Milli Majlis of the
Azerbaijan Republic, elections to the President of the Republic, and municipal
elections. The general part is apparently divided into four sections: but there
is no Section Three. The approach is, as a matter of principle, a good one. The
adoption of a single Code governing national elections and referendums is to be
welcomed. This codification should ensure greater consistency in the rules
governing referendums and all forms of elections.
2.
A certain number of recommendations previously made by the
Venice Commission and the OSCE/ODIHR are now reflected in the draft Code, in
particular:
·
There are enhanced provisions for the publication of
constituency results, broken down by precinct, by the Constituency Election
Commissions.
·
The threshold for allocation of seats between
participants in the parliamentary proportional vote has been reduced from 6% to
5% and the number of signatures
required for approval of a party list in the parliamentary proportional list
has been reduced from 50,000 to 40,000.
·
The use of numbered ballot papers is envisaged, which
should contribute towards the security of the ballot. The use of envelopes will
promote the same objective.
·
Voter lists will now be revised on an annual basis.
This should help to ensure that all voters, including internally displaced
persons, will enjoy the right to vote.
These comments
do not take account of the recent referendum in Azerbaijan. Considering this
fact, we must notice that additional comments could be provided when a revised
text will be submitted to us.
3.
However, the Code is very detailed and complicated; there are
major repetitions, which should be avoided. Several provisions contain only
minimal differences between the different types of elections. This is the case
with Articles 120, 121, 155, 156, 192,
193, 222 and 223, and many other
clusters of articles. The multiple repetitions, often with only slight
differences in wording, run against transparency and the right of citizens to
have a clear knowledge of the law. When the same principle regulates the
different kinds of elections, it should be stated in the general section and
avoid the repetitions in the sections dealing with different forms of
elections.
4.
There is a high risk of inexperienced candidates or political
parties to violate certain technical norms of the Code. In addition, election
contestants may be either discouraged from presenting their candidacy or may be
submitted to unexpected and harsh sanctions.
Principle of proportionality
5.
The sanctions for violations of norms must be proportionate.
Several provisions establish too severe sanctions (see for example Article 89.5).
In these cases, a cancellation of registration is disproportionate and a
financial sanction or a court proceeding would be a more proper sanction. In
the end, there will be sanctions by the electorate.
Election commissions
6.
a) The rules on the formation of electoral commissions remain
unchanged. There have been clear concerns about the perceived lack of
impartiality on the part of electoral commissions in recent years. This is not
surprising given the strong influence over commissions at all levels enjoyed by
the governing party, an influence which the present rules facilitate. There is
a real danger that if concerns about the impartiality of electoral
administration are not addressed in the Code, public confidence in the entire
electoral process could be profoundly undermined.
b) The election commissions have a lot of powers and too many duties
(registration of candidates, selection of complaints, electoral process, etc.),
with not enough members and an insufficient guarantee about experience. These
members may not have enough time to fulfil these duties.
c) The composition of these
election commissions is important, as is the training of members of polling
stations. The members of the different levels of election commissions must be
recruited on a basis of experience. The Code could envisage more guarantees
about this recommendation of training, because the whole electoral process
rests on these commissions.
d) Moreover, for the
Constituency and the Precinct election commissions, the composition could be
completed by a magistrate from a local court, who would have control over
different commissions within his/her territorial jurisdiction. This magistrate
would also write conclusions about the organisation of elections, attached to
the commissions’ protocols. See Article 24.1 and
24.2.
e) In the same way, these
election commissions should be formed earlier than stipulated in the Code (ex. Article 35.1 for the Precinct election
commissions, formed at least 40 days prior to the voting day).
f) Moreover, election contestants
should have the possibility of applying to the relevant court in all cases of
refusals by election commission.
Transparency
7.
a) Provisions
on transparency in the superior electoral commissions, particularly regarding
the issuance of protocols to interested parties, must be substantially
enhanced. For instance, minor mistakes, in petition sheets could be rectified
within a certain period of time. Security measures around the production and
distribution of protocols should be increased.
b) Existing laws and the draft Code provide that protocols of
election results are issued at Precinct Election Commission level immediately
at the conclusion of the count. It is absolutely essential that this rule is
extended in the General Part of the Code to the Constituency election
commissions. They must be required to issue certified copies of protocols on
request with a full breakdown of results for each precinct within the
constituency; otherwise the Precinct Election Commission protocols are
virtually worthless, as they cannot be cross-referenced with the Constituency
election commissions’ results. It is far from clear that such an obligation to
issue copies of protocols arises in the Code as presently drafted.
Suffrage and voter list
8.
The draft Code makes important and valuable provisions for the
annual preparation of voter lists. If properly implemented, this should help to
ensure that voter lists are accurate for elections and referendums and that any
errors or omissions have been corrected in good time. However, it is
recommended that the Code sets out explicit obligations for the Precinct
Election Commission in verifying the accuracy of the information provided by
the local authorities. The Code should specify deadlines by which (i) the
relevant information must be provided by the relevant authorities to the
Precinct Election Commission, (ii) the Precinct Election Commission must
deliver the second copy of the updated list to the Constituency Election
Commission, and (iii) the Constituency Election Commission must send the
aggregated information to the Central Election Commission (Article 29.5).
Registration of candidates /
Signatures
9.
a) The rules on the number of signatures required in order to
register a party list or presidential candidate remain excessively stringent.
The numbers required should be further reduced and the geographical
restrictions on where signatures must be collected should be eased. Moreover,
voters should be permitted to sign signature lists for more than one candidate
or party list in all elections. Candidates and parties must be given an
opportunity to correct minor defects in their registration papers.
See Article
147.2.
b) An electoral commission is permitted
to annul a registration up to ten days before the election if it discovers that
the information submitted in the application was invalid. This is a draconian
power which should be exercised only by a court. The electoral commission
should ensure that the submitted information is correct before it makes the
decision to register the candidate or party list.
See Articles 66.4, 148.1 and 183.2.
Election campaigns: general
issues
10.
The campaign period for candidates in the Milli Majlis
elections begins 45 days before the election, as opposed to 65 days for the
political parties. This is an improvement compared to previous legislation, but
the period for both should be 65 days as 45 days is unlikely to suffice.
The media
11.
The draft Code imposes important requirements on the mass
media to provide equal opportunities for all election participants and
prohibits the State media from engaging in partisan reporting.
Observers
12.
a) The Code should foresee a rolethe right for
non-partisan domestic observers to be accredited as such in an election;
this is a serious shortcoming (only regulated in a Central Election Commission
regulation) . See Article
8 of the OSCE Copenhagen Document; these rules should be included in the
Code, not left to be determined by the Central Election Commission (Article
38.3).
b)
In a nutshell, the draft Code seems to establish diverse rules for different
types of observers. Domestic and international observers should enjoy the same
rights and duties.
c)
Public associations, including those receiving foreign funding, should be
permitted to observe the election process.
d)
Observers should have the right to observe the entire electoral process,
including printing and distribution of ballot papers.
Cancellation of
candidates
13.
It is essential that cancellation of a candidate’s or party’s
registration, or refusal to register, is a sanction of last resort. The Code
should provide a range of sanctions to avoid disproportionate responses to
relatively minor violations (see general point n° 5).
Election funds
14.
The Code requires all referendum support groups, candidates
and parties to obtain substantial numbers of signatures in order to register.
In doing so they demonstrate that they enjoy a significant element of public
support. It is therefore unfair to require unsuccessful campaign groups,
candidates and parties to reimburse the public funds they have received in
support of their campaigns. Moreover, such a rule is likely to act as a
powerful disincentive against political activism.
Election results
15.
The draft Code should provide for the announcement of preliminary
results. This will enhance confidence in the election results.
Claims
16.
The rules on consideration
of complaints are likely to be ineffective in practice and deny voters and
other interested parties a timely and effective remedy. They also deny adequate
access to a court for the resolution of election disputes.
1.
Preamble
All five
principles underlying Europe's electoral heritage contained in the Venice Commission Guidelines on
Elections are not reflected in the
Code. The principles of free and secret elections should be included in the
preamble as well as in Article 2.1.
If a referendum may be binding or not according to the
national constitution or legislation, there must at any rate be no confusion
between an opinion poll and a referendum. The referendum is an official
procedure allowing the people to give its opinion on a question, and has to
respect a series of rules including the principles of the European electoral
heritage, whereas an opinion poll is just a way to get informed about the
opinion of the public at a certain time. Moreover, the result of the referendum
is binding according to the draft (see Article 140), at least if it is
positive. It should be made clear that it is also binding when it is negative.
2.
Article 1
a) “Pre-election campaign”:
a.i) It is
recommended to conserve the expression “(Pre-)election campaign” but delete the words “or not to participate in the election”. These remarks apply also to
the previous paragraph, which should be revised in the following way: “with
purpose to call upon to citizens of the Azerbaijan Republic to participate in
the referendum, to support or not to support the issues submitted to referendum”.
The Venice Commission and the OSCE/ODIHR have already pointed out that such the
vote “is completely out of the ordinary in established democracies” and
that “it may lead to challenges of the legitimacy of the elections and may
thereby undermine the democratically elected regime”. This comment concerns
also Articles
5.1, 10.2, 165.3, 166.3,
203.2 and 232.6, 233.2 and 235.2.2.
a.ii.) It is
advisable to use the definition of “Pre-election
campaign” for the term “election campaign” and delete the term “Pre-election campaign” from the Code. At
the same time, there is a suggestion to replace “election campaign” by “election
activities” (essentially in four instances where the Code uses the
locution: Articles 82, 83, 87 and 192 ),
to avoid the risk of confusion between the terms. Indeed, it is strange to
speak about a campaign after the election day.
b) “Election constituency”
is repeated twice under Article 1, with different meanings:
- Election constituency –
geographical unit where the voters electing a representative (representatives)
to any elective State body are registered;
- Election
constituency – an area organised in conformity
with the present Code for conducting elections.
The following choice of definition is suggested:
Election constituency – geographical area organised in conformity
with the present Code for conducting elections. The voters who are registered
in this area elect a representative (representatives) to any elective State
body.
Remark: it is recommended to delete references to
referendum because there is no constituencies for this scrutiny.
c) “Ensuring suffrage”: It
is advisable to delete the definition:
- its meaning
remains uncertain;
- and it is
not found elsewhere in the code.
d) “Active and passive suffrage”:
the definitions are repetitive with the definition of “suffrage”. The definitions of “active
suffrage” and “passive suffrage”
in Article 1, which are explained in the Articles 12 and 13 should be deleted.
3.
Article 2.1
See the remark in the Preamble.
4.
Article 3
The words “or any other status” in between “public unions” and “Azerbaijan
Republic’s citizens” should be included. This would take account of Article
14 of the European Convention of Human Rights.
5.
Article 5
See the
first remark in Article 1 a), about the vote “against all
(single lists of) candidates”.
The
following definition is suggested: (Only one paragraph) – Citizens of the
Azerbaijan Republic must personally vote. They can vote for a candidate or a
list of candidates during elections and for or against issues to be discussed
by referendum.
6.
Article 9
a) It would be better to delete “Unless otherwise stipulated in this Code” which is unclear for the
reader. Moreover, “suffrage is exercised”
would be better as “active suffrage is exercised”.
b) The definition of residence
can give rise to misunderstandings. According to the Guidelines on Elections by
the Venice Commission (I. 1. a. cc. ii.), “residence
means habitual residence”.
c) Moreover, the Code should give more precision about the
place where the suffrage takes place, more precisely in a definite polling
station, stipulated by the relevant Precinct Election Commission. The
geographical area of each polling station should determine precisely the place
where the voter can vote (determined by a meeting of the Precinct Election
Commission every five years, when voting
stations are determined); i.e. each street must be connected to a definite
polling station.
d) Article 44 and Article 9 are saying something different,
because it States that voters can be included in the voters lists when “residing in precinct territory at least 6
months out of 12 months prior to announcement of elections”. That is quite
different from the “permanent place of
residence”, which should be retained.
See also Article 34.4 about the remark c), and Article 44.2 about the remarks b) and d). This comment applies also to Article 145.1.
7.
Article 10.1 and 10.2
Probably paragraph 10.1 is mistaken: the vote can be for
only one candidate or against all; it is unlikely that it could be against one
candidate.
Paragraphs 1 and 2 of Article 10 seem to be contradictory:
unless the “or against” part of paragraph
1 is deleted.
In any case, it should be better to delete in the two
paragraphs the rule “against …”; see the first remark in the Article 1 a) about the vote “against all (single
lists of) candidates”.
8.
Article 11
The words “Notwithstanding the rights to freedom of expression and of association”
before “State secures free conducting…”
should be included. The rights to freedom of expression and association
according to Articles 10 and 11 of the European Convention of Human Rights do
not only belong to citizens but to all persons within the jurisdiction of a
member State. This means that non-citizens (Stateless persons and foreigners),
although they do not have the right to vote, do have the right to freely
express their opinion and to associate during election campaigns.
This has already been remarked by
the previous comment of the Venice Commission: “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”.
See Article 15.2 and 15.3.
9.
Article 12
The words “having universal suffrage” should be deleted since they add
nothing, and could cause misunderstandings. It should be made clear that the
expression “active suffrage” extends to the right to vote in all
elections, which could permit to replace the words “having universal suffrage” by this last expression “active
suffrage”.
It is advisable to modify the
article as regards citizens being 18 on the
actual day of the election with the precision: “the day of
election included”, which replaces “on
the day of election”.
See the comments in Article 1 d).
10.
Article 13
The norm is unclear. There should be a general principle
on passive suffrage: indeed, it would be better to make clear, directly, who
can be a candidate in the different types of elections and who can be an
initiator for referenda. Such rules are found in the Code under Articles 63.1,
143, 179 and 213.
The previous comments of the
Venice Commission on the law on parliamentary elections seem not to have been
considered. Yet in Article 14 of the Code there is still no clear distinction
between the cases of ineligibility and incompatibility. The norm of Article 14
should make a distinction between paragraphs 1 to 5 on the one hand, as to
cases of incompatibility; and 6 to 8, on the other hand, as cases of
ineligibility.
12.
Article 14.3.1
With regards to Article 17 of the European Convention on
Nationality, persons with dual citizenship do not have to choose citizenship of
the State in order to exercise their political rights, notably to exert a
mandate, and they have the same rights and duties as other nationals.
See Article 64.
13.
Article 14.3.6
The provision is too harsh and should consider two forms
of proportionality, in the term and in the degree of the infraction. Firstly,
the provision does not make distinctions between trivial offences and serious
crimes. Moreover, the Code should articulate more clear provisions between
paragraphs 6 and 7. Secondly, for the sake of the principle of proportionality,
a time limit should be established for possible candidates whose sentence was
served more than 15 years ago.
14.
Article 15.2 and 15.3
The provision violates Articles 10 and 11 of the European
Convention of Human Rights insofar as it applies to foreigners and Stateless
persons (see Point 8, Article 11). This means
that non-citizens (Stateless persons and foreigners), although they do not have
the right to vote, do have the right to freely express their opinion and to
associate during election campaigns. This has already been remarked by the
Venice Commission (see again Point 8, Article 11).
Section Two. General
provisions
The addition of the following
sentence: “…election commissions shall ensure the preparation and holding of
elections, and after the election day”
is recommended. It concerns the control of operations (immediately) after the
election, especially the counting of ballot papers and the announcement of the
results.
16.
Article 16.3
a) The
confirmation of the principle of independence of election (referendum)
commissions from the State, local self-government bodies, as well as from
political parties and non governmental organisations is recommended. The
wording is not accurate because the commissions are State institutions
themselves and it would be important to rule out any interference by the
Government rather than by private entities like political parties or non
governmental organisations.
b)
The provision clearly rules out intervention by State organs. However, adding
the words “according to legislation”
at the end of the provision is recommended in order to make it clear that the
imprecise wording of Article 16.3 cannot be the basis for sanctioning an
individual.
17.
Article 16.4
The provision should mention also
State organs, together with municipalities and private parties, as entities
bound by the election commissions’ acts and decision. Also public order forces
should be bound to election commissions decisions, within the boundaries of
their authority.
Replacing “shall be obligatory for municipalities…” by “shall be obligatory for all territorial entities…” (not only for
the municipalities) is recommended.
18.
Article 16.5
The Code should
provide guarantees for protection of data on voters.
See
also Articles 25.1.17, 32.1.13, 43.9, 96.2 and 96.4,
and 105.
19.
Article 16.6
a)
The article establishes a range of principles by which electoral commissions
should operate. Requirements to act impartially, to ensure that information is
disseminated, to refrain from unlawful actions are expressed to be “principles”,
a guide to behaviour, rather than binding obligations. Moreover, the actual
meaning of some of these principles, such as Article 16.6.9 and 16.6.11, is far from clear.
b)
This Article should also clearly stipulate that decisions of superior
commissions are binding on inferior commissions.
20.
Article 16.6.13
It
provides that the election commissions should not explain decisions made. The
giving of reasons, however, is an essential part of resolving election disputes
and complaints against the acts and omissions of electoral commissions. This
principle should be removed and substituted with a requirement to give reasons,
at least in relation to the determination of complaints and appeals.
The possibility of having substitute members of the
election commissions, who were nominated and elected in the same conditions
than the title members might be envisaged.
22.
Article 18.10
The article requires that minutes are taken at all
meetings of electoral commissions. In accordance with administrative good
practice, this article should include a requirement that the minutes are
circulated in advance of the following meeting and are approved as the first
item on the agenda of that meeting. Moreover, a one-third minority of any commission,
by raising a petition to the chair, should be afforded the right to have issues
included on the agenda of an electoral commission meeting.
23.
Article 19.1
a) The requirement in article
19.1 for weekly publications to give a page of free space to electoral
commissions should be limited to publicly owned publications referred to in Article 78.1. About this subject, see
comments on Articles
78 and 79.
b) There is no justification for
requiring private weekly publication to give space to electoral commissions,
particularly when no compensation is envisaged.
24.
Article 20.2
The second paragraph allows election commissions to reject
a candidate representative. The Code does not clarify what the legal grounds
for such a refusal are. It is difficult to see any justification for the
intervention of election commissions in the nominations of representatives.
This provision should be repelled.
25.
Article 21.1
The Venice Commission recommends
that the Central Election Commission should include “at least one member of
the judiciary” . It would be
better to include also one member of the judiciary in the Constituency election
commissions, or a member who would have jurisdiction over several Constituency
election commissions.
The provision that “an election commission member can
only be member of only one election commission, indistinctly with a decisive or
a consultative voting right” could be written in simple terms.
27.
Article 21.3
This rule should be spelt out explicitly: “the bodies
appointing members of electoral commissions must not be free to dismiss them at
will” .
28.
Article 21.4.3
This paragraph seems to be made
redundant by paragraph 1 of the article.
29.
Article 21.4.4
The
term “close relative” should be
defined.
30.
Article 21.5
It is recommended to make clear that the new member is
nominated by the same authority as the previous member.
31.
Article 21.9
Members with decisive voting
rights may not be subjected to criminal or administrative penalties during the
preparation of an election without the consent of a procurator. It is suggested
that consent should only be given by a senior procurator, possibly the
Procurator-General. If it follows from the article that this rule also applies
to members with consultative voting rights, the Code should make this clear.
32.
Article 21.11
The meaning of the article is
unclear. Electoral commission members with consultative vote clearly need to
remain in post beyond the end of registration of candidates, through to the end
of the processing of the results. The first part of Article 21.11 seems to
contradict the second part.
33.
Article 21.12
This paragraph could be simplified.
34.
Article 22.1
It is strongly recommended that
the term of office of electoral commissions, stipulated in the article to be
six years, is reduced. At most, electoral commissions should operate for the
same term as Parliament and President, namely five years. In the case of
parliamentary elections, a six-year mandate will contradict the principle
according to which the election commissions should reflect the political
composition of the Parliament.
35.
Article 24.1 and 24.2
a) The composition of the Central Election Commission is
unclear. On the one hand, half the members of the Central Election Commission
are appointed by the Milli Majlis, and half by the President of the Republic;
on the other side, one third will represent the majority group of the
Parliament, one third the minority and one third, the non partisan deputies.
The contradiction would be solved if both bodies respected the 1/3 ratio, but
it ought to be stated in the Code together with rules that explain how the
appointing bodies (President and Milli Majlis) will reflect the will of the
parties that are supposed to be represented in the Central Election Commission.
b) The existing rules for the appointment of electoral
commissions ensure a degree of political plurality in electoral commissions at
all levels. However, through a system of direct appointment of inferior
commissions, they also give the majority party in the presently constituted
Parliament an exceptionally strong influence over not only the Central Election
Commission but all subordinate commissions. More importantly, recent election
experience suggests at least a strong perception that the commission members
appointed by theoretically “independent” sections of Parliament tend, in
reality, to vote in line with the governing party.
Indeed, the composition of the Central Election Commission
largely depends from the President of the Republic and his own majority party.
The previous comment of the Venice Commission is still relevant; the
composition of the Central Election Commission must be independent from the
composition of the Milli Majlis, that means independent from the representation
of each political party in the Milli Majlis. Moreover, regarding the
composition with one-third of neutral members, the role of such neutral members
could, in part, be played by judges, also by respected civic organisations in
the fields of human rights and democratisation. The best solution would be to
seek a balance between major political parties in order to avoid predominant
influence of one party over all election commissions.
See also General comments,
Point 6, Articles 31 and 35.
c) The article, which assigns a
role for “independent lawyers” in the Central Election Commission,
should make clear that this means lawyers in private practice (or, at least,
that the rule excludes lawyers engaged in State service).
36.
Article 24.3
“State body” should be
replaced by “the President of the Milli Majlis” if it is the meaning
required in the Code.
37.
Article 25 and 26
The Code should clearly
distinguish between the Central Election Commission’s powers and duties. The
latter should include an obligation to adopt its own internal rules of
procedures, which should be published in the mass media. The accreditation of observers
should be part of the Central Election Commission’s functions.
38.
Article 25.1.1, 25.1.5, 25.1.8, 25.1.13 and 25.2
Moreover, the Central Election Commission ensures the
public display of the main election regulations and methods
to each inferior election commission, which must distribute this information in
each polling station (for instance by notice boards the day of election).
39.
Article 25.1.16
The relationship between the unified registration system
and the voters lists is not regulated. See Article 43.1.
40.
Article 26.1, 26.2, 26.3 and 26.4
In order to avoid
misunderstandings there is a proposal that these four provisions begin with the
words “Notwithstanding its tasks under
Article 25, the Central Election Commission ...”. Otherwise it could be
argued that Article 26 limits the powers of the Central Election Commission
under Article 25.
41.
Article 27.2
This may be a problem of
translation: the order in the
English translation allows for the interpretation that the consent of the
prosecutor is only needed for the imposition of criminal liability, whereas
this should clearly be true for administrative penalties as well. It is
therefore suggested to put the words “or
administrative penalties” before “without
consent of a general prosecutor”.
42.
Article 28.1
The hierarchy within the Central
Election Commission in this article should be clarified, especially concerning
the Chairman who is not the chief with powers of decision-making. Thus, the
Central Election Commission as a body can override decisions of its Chairman.
It would be preferable for the Central Election Commission to be expressly
given the power to establish some rules of procedure for its work (for
instance, the Central Election Commission should determine if the Chairman has
a preponderant voting right in Central Election Commission’s decisions).
Moreover, the Chairman, deputy and secretaries should be elected among its
members. Similarly, the Chairman of the Central Election Commission should not
represent the majority party in the Milli Majlis.
This comment also applies to Article 90.5.
43.
Article 28.3
Several deadlines are too short in the Code, concerning
information about meetings or the distribution or publishing of information.
In this article, the deadline of
24 hours to inform the members of the Central Election Commission before the
meeting takes place seems too short, and the Chairman should inform the members
of such a meeting 3-5 days prior to the meeting, insofar this is as possible.
This term is indicated “at the latest”.
The advisable time, and not only the deadline, should be indicated.
See notably Articles 33.3, 34.7
and 37.1 for the same comment.
44.
Article 28.5
Decisions of the Central Election
Commission should enter into force upon their publication, and not upon their adoption.
45.
Article 29.1
Consideration should be given to
the previous comments of the Venice Commission, which suggests it would be more appropriate to give a boundary
commission the task of drawing the limits of the electoral districts.
There is no provision for such a boundary commission, which should be provided
for in the Code.
See also Article 29.5.
46.
Article 29.2
The article provides for the
inclusion of voters residing abroad within an ordinary voter list. This seems
to create a disproportionate burden for the organisation of elections. There is
relatively little difficulty in allowing overseas residents to vote in nationwide
constituency elections (i.e. for the party list votes in parliamentary
elections and in presidential elections). However, trying to identify which
particular constituency an overseas voter should be assigned to, and ensuring
that the appropriate “local” ballot paper is delivered to the voter who is
residing abroad, ensuring that the ballot papers are all delivered back to the
constituencies and are then properly processed without causing inordinate delay
to the determination of the results, all creates a very substantial amount of
work and slows down the election process.
47.
Article 29.3
Although some criteria of
distribution have been openly stated as requested by the Venice Commission, the
equality and proportionality of distribution is not however enshrined in the
law, as was also suggested.
48.
Article 29.5
The Code should provide for an
independent Committee which plays this role in the process of redrawing of the
boundaries of election districts.
See the comment about Article 29.1.
49.
Article 31
The comments relating to Article 24.1
and 24.2 apply here as well. These comments apply also to Article 35.
Article 31.4 establishes a “supra-majority”
rule in the appointment of members of the Constituency Election Commission: two
out of the three candidates nominated by the members of the Central Election
Commission representing non-partisan deputies are agreed with the majority and
minority party nominees on the Central Election Commission (one each). It is
recommended that this rule is reinstated for the creation of the Central
Election Commission and introduced for the formation of Precinct election
commissions.
The number of Precinct election commissions’ members
should be raised from 6 to 9 in order to reflect the increased amount of work
entailed by new provisions in the draft Code such as annual update of voter
registers, new voting provisions.
50.
Article 32
The article, which lists the “authorities and directions” of electoral
commissions, fails to refer to the important task of considering election
disputes and appeals. That duty is only referred to in relation to the Precinct
election commissions (Article 36.1.9).
51.
Article 33.3
See the comment about Article 28.3.
This article is unclear, and
should be considered if the chairperson and secretaries of the Constituency
Election Commission did not sign the decisions either because they were opposed
to the decision or because they were not present.
53.
Article 34.4 and 34.5
a) The conditions under which extraordinary voting
stations can be created are not explicit enough. They should be restricted to
such situations in which a substantial number of voters is unable to go to the
regular voting station.
See the comment on Article 9 c).
b) Rules of formation of Precinct election commissions in
ships should be regulated in the Code not in Central Election Commission’s
regulations.
c) This rule should be spelt out
explicitly: “Military personnel should
vote at their place of residence whenever possible. Otherwise it is advisable
that they be registered to vote at the polling station nearest to their duty
station”.
54.
Article 34.7
See the comments on Article 28.3.
55.
Article 35
The composition of Precinct Election Commissions
follows the model of Central Election Commission. Previous comments apply also
to lower commissions.
The comments relating to Article 24.1 and 24.2 apply here
as well. The topic of the composition of the Constituency election commissions
is dealt within Article
31.
56.
Article 35.2
It is not clear why Article 35.2 should not be
applied to Precinct election commissions according to Article 35.10. Article 35.2 should have no exception. All
Precinct election commissions’ members should be appointed by the relevant
Constituency Election Commission, even for the Precinct election commissions
created within the places where voters are temporarily located and within
military units. Chairmen could have a nominating and consultative power.
All electoral commissions should have a multiparty representation.
57.
Article 35.6
It goes too far to expect of captains of ships to be
able to function as an election commission. The danger of incompetence, fraud
and abuse is much too high. It is therefore advisable to exclude the
possibility of voting on ships and rather provide for an alternative
(land-based) mode of voting for passengers and crew.
Maybe, it would be better to
envisage a system of vote by proxy, in order to avoid the mobile ballot box.
The same applies also to Article 100.8 and Article 102.3.
58.
Article 35.9
The article should indicate that
candidate and party observers are entitled to observe not “from the time
voting commences” but (in accordance with Article 38.7) from the
time at which the Precinct Election Commission commences work on polling day,
which will be some time before the first voter casts his/her vote.
Redundant with Article 38.8.
59.
Article 35.10
a) In any case, the members of the Precinct election
commissions (created under the conditions of Article 35.10) cannot be members
of any political party.
b) The Precinct Election
Commission where voters are temporarily located (hospitals, sanatoriums, rest
homes, etc.) should be formed by the relevant Constituency election
commissions.
The Code should indicate (in this article or
elsewhere) a secure mode of transmission of the results protocols to avoid the
risk of fraud during this transmission. Which authority could ensure the
transmission (or transport) and which entity could control this transmission?
61.
Article 37.1
This is unnecessarily short
notice. Members should have at least 24 hours’ notice.
See comments on Article 28.3.
62.
Article 37.3
The article should be corrected
to comply with the two-thirds requirement for taking decisions: 4 votes are
necessary to adopt a decision if 5 or 6 Precinct Election Commission’s members
are present, and 3 votes are required if 4 members are present.
63.
Article 38
It is maybe a mistake of translation: Article 38.9 is
followed by a second Article 38.8 and a second Article 38.9.
64.
Article 38.8
The Code should be deleted because it adds nothing
and is redundant with Article
35.9.
65.
Articles 38.3, 38.8, 38.9 and 40
a) International observers’ competence cannot be
restricted to the observation of the election day. All accredited observers
must be allowed to observe the whole election process, from the registration of
candidates and voters to the publication of results. The Code must precise
these periods of observation and the common status of observers.
See also the Article 40.1 about the common status.
b) All references to “observers” in the Code should be clear
as to which observers are contemplated: including or excluding international
observers? In any case, domestic and international observers should enjoy the
same rights and duties.
c) The rules on who may act as a domestic observer and how
they are registered are important. They should be briefly but clearly defined
and they should also be included in the Code, not left to be determined by the
CEC (Article 38.3).
d) 38.3. The draft fails to
include a provision on the role of non-partisan domestic observers. This is a
serious shortcoming that contradicts Paragraph 8 of the Copenhagen Document and
that should be remedied.
e) The list in (the first)
Article 38.9 should make specific reference to places of detention.
66.
Article 39
This article should be deleted because it is
impracticable and can lead to abuse on the part of the authorities. Observation
may be partisan, as long as observation by opponents is ensured. The state
should not subject every election observer to risk prosecution or other sanctions
by requiring that election observers act like judges. This is furthermore in
contradiction with Article 38 which provides for partisan observers. See
comments on Article 38, d).
67.
Article 39
The article sets out a number of “principles” of
observation. The purpose of enumerating such principles in the Code is far from
clear. This article should be deleted because it is impracticable and can lead
to abuse on the part of the authorities. Observation may be partisan, as long
as observation by opponents is ensure. What is meant by “open”
observations? The suggestion that observation should be “in accordance with truth” seems somewhat pointless. Who is to determine
whether observation is “in
accordance with truth”? What are the
consequences if it is not?
68.
Article 40.1
Observers may also write observations during the
whole election process (under the terms of Articles 38.8 and 40), in the commission’s
protocols or attached to it, or to the protocols on voting results and the
election returns.
69.
Article 40.1.6
The need for observers to “look through” ballot papers only arises in relation to those instances where there
is a dispute about the validity of the ballot or the voter’s intention. In
those circumstances, an observer will need to have close inspection of the
ballot paper. In other cases, observers should not be permitted to look through
ballot papers or otherwise handle them at all.
70.
Article 40.1.8
a) It is implicit from the
context of the article that the right to receive copies of protocols described
here applies to the Precinct Election Commission only. The need for a
requirement to issue copies of protocols also applies to the Constituency
election Commissions and the Central Election Commission.
b) The article provides for a fee to be charged by
electoral commissions for the issuance of certified copies of protocols. The
justification for this innovation is far from clear. The issuing and use of
protocols to check the accuracy of the results is a vital part of the process
of ensuring transparency and the Code should ensure that the process is not
obstructed. The cost to an electoral commission of producing a verified
protocol is minimal, given that observers etc. can compile their own protocols
on blank forms which the electoral commission merely needs to check, sign and
stamp. In those circumstances only a very low fee could be justified and the
cost in time and effort of processing the fee payments is unlikely to justify
the revenues thereby raised.
71.
Article 40.1.9
The right to file complaints
about actions (lack of actions) or decisions of the Precinct or other election
commissions directly with superior election commissions or the court is a clear
breach of the international observer’s code of conduct, and its non
interference obligation.
72.
Article 40.2
The list of activities which
observers must avoid should include any inquiry into how a voter has voted or
intends to vote.
73.
Article 40.3
This provision is not specific to observers’ rights and
duties and should therefore be put in its proper place somewhere else in the
Code.
Concerning the fees for the copies, see Article 40.1.8.
74.
Article 42.9
The international observers must also have the right to
meet with voters.
75.
Article 43
The provision
should expressly State that voters lists are permanent.
76.
Article 43.1 and 43.10
Article
43.1 provides that additions and amendments to voter lists cannot be made on
polling day. This provision and Article 101.7 require amendment to
reflect the use of supplementary voter lists, used by voters who have been
issued with a deregistration card to vote away from home. It is also unclear
how this rules fits in with Article 45.2,
which allows for the correction of mistakes in voter lists on election day.
Deadlines
specified in Article 43.1 and 43.10 for the preparation of voter lists are
inconsistent and should be amended.
77.
Article 43.1
Additions
and amendments to voters lists could be possible at any time, and especially in
the last weeks or days by a claim (recourse), for instance by citizens.
Regarding this question, Guidelines on Elections by the Venice Commission (I.
1. b.) advise that electoral registers must be permanent, and there must be
regular updates, at least once a year. Such rules seem to have been
implemented.
Because of the
importance of voters’ registration in the electoral exercise, it is recommended
that the procedures and steps of formation of the unified registration system
be clearly stated, giving each party, and citizens in general, the right of
control of the lists in a permanent way, not depending only on the forthcoming
election exercise, according to the suggestion of the quoted guidelines. For
instance, the registration list could be consultable at the Central Election
Commission throughout the year (the Central Election Commission being a
permanent body), by each citizen.
See
Article 25.1.16.
78.
Article 43.5
Voters lists for
the precincts where voters are temporarily located must not be approved solely
on the basis on information provided by heads of the offices where voters are
located. A sick person who is unable to move must nevertheless have the
possibility of registering as a voter independent of the director of the
hospital in which he is. Furthermore, relatives must be able to provide
additional information to the heads of the institutions.
79.
Article 43.8
a) The voter’s
address must comprise the street and the street number, or the place where they
live (address of the hospital, rest homes, and other places where people are
temporarily located). The voters list could contain also the relevant voting
station.
b)
“a place where a voter mostly resides”
should be referred to Article 44.2 (it is explained place where a voter
leave at least 6 months out of 12). See comments on Article 44.2.
80.
Article 44.2
See
the comments in the Article 9, b) and d).
81.
Article 44.5
The article should make specific provision for the
inclusion in voter lists of persons held in detention who have not been
sentenced by a court.
82.
Article 44.7
It is desirable that the Code, rather than a Central
Election Commission instruction, should indicate what documents are valid by
way of identification documents in place of a passport. For instance, on notice
boards the election day.
83.
Article 44.8
The article provides that a voter may be included in the
voter list of one precinct only. It should indicate the consequences will arise
when this rule is broken, taking into account that a voter may be included in a
voter list through no fault of his own (by administrative error or otherwise).
It would be better to inform the voters concerned by
exclusion from the voters list, by letter, for instance.
85.
Article 45.1
The voters list should be available to the public earlier
than 35 days before the elections
in order to have sufficient time for possible procedures concerning corrections
(additions and deletions).
86.
Article 45.2
a) The rule according to which voters lists can be
corrected on election day is in contradiction with Article 43.1. See the same comment
in the Guidelines on Elections by the Venice Commission (I. 1. b. iv.). This
comment applies also on Article 101.7.
b) The article should make clear that voters can identify
errors in the voter list which concern other persons (for instance, indicating
that a particular voter no longer resides at an address or has died). The
Precinct election commissions would clearly have to verify such information for
itself before removing voters from the list.
87.
Article 45.3
a) The scheme for election
complaints and appeals in the draft Code is both unusual and problematic. If
someone is dissatisfied with the act or omission of a Precinct Election
Commission, s/he may only appeal to the Constituency Election Commission once
s/he has made a complaint to the Precinct Election Commission, the complaint
has been considered and the decision on the complaint has been communicated.
Equally, s/he can only complain to the Central Election Commission once the
Constituency Election Commission has considered and rejected the complaint.
Only then can s/he apply to the Court of Appeal for a remedy. This is a very
time-consuming scheme which is likely to deprive voters, candidates and other
interested parties of an effective remedy. The draft Code permits a direct
appeal to a court, but only if the decision or omission complained of violates
citizens’ voting rights.
There should not be a choice of
filing a complaint either before the Precinct Election Commission or a court,
and the Code should envisage that a voter is able to take action before only
one entity. More
precisely, the right to apply directly to a court for a remedy should be a
general right extended to voters, candidates, political parties and other
participants in the electoral process for the effective protection of all
rights associated with elections and referendums.
b) 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.
c) The election commissions can accept complaints, but cannot submit
cases to court selectively, and act as a judicial body. The Code should make it
clear that, once a complaint has been made to an electoral commission, the
commission (including the Central Election Commission) must consider the
complaint. It should be clear that electoral commissions do not have the power
to refuse to consider a properly made complaint and refer it to a court.
The Code should make clear that
the only situation in which an electoral commission should decline to consider
a complaint or appeal is where the same matter has already been referred to a
court and is awaiting judicial consideration.
d) No rule is found about appeals by candidates or parties
on violations of their passive suffrage: refusal of registration or
cancellation of registration, or related actions. Yet, Article 149.5, Article
184.3, and Article 217.5 all provide (with a clear case of commented
repetition) that in case of a decision on the refusal to register a candidate,
the relevant commission informs the interested person and submits a copy of the
decision. Specific and clear rules should be entered to protect the candidates’
rights against such a decision, providing their right to appeal either to the
superior election commission or to the court.
e) Complaints about errors in a
voter list need to be considered in less than three days if the complaint is
made immediately before or on polling day.
f) The Code should indicate how a
citizen seeking to vote abroad can appeal against a refusal to include him in a
consular voters’ list.
There is no harmonisation between
this article and Article
107.
88.
Article 46.1
It is hard to understand why a
political party that is already established according to law, and is also
registered with the relevant administrative authorities, should need a new registration with Central Election
Commission in order to be able to nominate lists of candidates in an election
exercise. It appears a cumbersome and unnecessary requirement. In the same way,
it is hard to accept that a newly established party (registered with the
relevant administrative authorities less than 6 months before the announcement
of the election day) should not be allowed to participate in an election.
See also Article 54.8.
89.
Article 48
The article lists 22 principles
that should be followed by political parties and blocs. The second paragraph
States that “follow of the principles mentioned...is voluntary, except
compulsory circumstances defined by the law”. The second paragraph draws
the list of principles that are legally irrelevant. However, most of the principles
are provided for in other parts of the Code, and find there a proper sanction.
Most of the same “voluntary”
principles are listed under Article 62
as Activity principles of Campaign Groups
on Referendum and again under Article 72 as Participation
Principles of Registered Candidate in Elections. It is a clear case of
multiple repetition that should be avoided.
90.
Article 48.1
a) Since the principles are not
binding but voluntary (see Article 48.2),
it would be better to exchange the word “must”
for “should”.
b) The article sets out a long
list of ‘principles’ which political parties should follow. If this provision
does not impose legally binding obligations, the point of including it in the
Code is questionable. If it does, the Article needs much clearer drafting.
There is no justification for requiring a party to accept the legally approved
results of elections (Article 48.1.16), if that means that the party is
inhibited from criticising the conduct of elections or questioning the validity
of their results. Such a “principle” conflicts directly with the right
to freedom of expression. Similarly, citizens may lawfully choose not to
participate in elections. Political parties should therefore not be inhibited
from encouraging citizens to exercising their lawful right not to vote (Article
48.1.20). This provision should be read like Article 72.1.19.
91.
Article 48.1.4
It should not be a duty for a
party to “create” all necessary
conditions for other political parties, but rather “not to obstruct” the exercise of the rights of other parties.
92.
Article 52
The whole content of Article 52 is repeated in Articles 53 and 54. Article 52 should
be deleted.
It would be a good idea to indicate
in these articles the number of signatures required to support candidates.
94.
Article 53.2
The candidates should have to show evidence of their
habitual residence in order to candidate in the precinct where they live.
95.
Article 53.3
a) It is, in principle, legitimate to require transparency
with respect to criminal records. There is, on the other hand, a human right
not to be forced to publish one’s criminal record if the conviction has taken
place a long time ago. A time limitation of 15 years should be stipulated for
the requirement to declare a criminal conviction in an application.
b) A second point with respect to this article concerns
criminal actions which have been committed abroad: Article 53.3 does not speak
of sentence, but of criminal action. Candidates must only submit actual court
convictions in a foreign country, or the reference to foreign criminal activity
should be omitted entirely. Otherwise the human right of presumption of
innocence would be violated. The same issue arises in several other provisions
of the Code, such as Articles 54.8, 56.3, 57.5, 164.4, 201.3 and 231.2.
96.
Article 53.4
About the right to indicate
his/her party affiliation in the nomination documents. Such a provision will
confuse the voters and could lead to a situation where several candidates from
the same party run in a particular constituency.
97.
Articles 53.7 and 54.10
About the conditions for refusal of certification of
nomination of a candidate, there are slight differences in wording that are not
justified between both articles. Irregularities in the documents should in a
first instance allow for a late regularisation; while “violation of rules defined by the code” is too vague for implying a
refusal of nomination certification without making any difference between minor
violations and serious offences.
98.
Article 54.1 and 54.3
The article provides details of
minutes of meetings by political parties where decisions on nomination of
candidates have been taken. Such details appear to be an internal affair of the
political party and the interest of the election commissions in them is
debatable.
99.
Article 54.8
See comments on Article 53.3, b).
See
comments on Article 46.1
about the six months.
100.
Article
54.10
See comments on Article 53.7.
101.
Article 55.1
Possible
exceptions to the principle of equality between candidates are provided by the
norm. But the exceptions are not clearly referred to and it would be better to
determine a strict number, if any.
102. Article
56
See the comment on Article 53.1.
103. Article
56.1
It is not clear why independent candidates (self nominated
or nominated by initiative groups) can start collecting signatures from the day
of the notification of the initiative (53.2) and before the decision of the
commission, while political parties have to wait for the decision of the
commission (56.1). In fact, Articles 147
and 148 of the Code have different and contradictory provision for
elections to Milli Majlis, referring the difference in the initial term of
collection to single mandate candidates on one side; and list of candidates, on
the other. Article 183.1 for election of President of Republic, provides
that collection of signatures commences, in all cases, on the day the Central
Election Commission is informed.
Therefore, Article 56.1 is
unclear, unnecessary and contradictory to other norms, and should be deleted.
104.
Article 56.3
See the comments on Article 53.3.
105.
Articles 57 and 66
a) Citizens who are 18 years old and fully capacitated can
collect signatures, but not companies (legal entities) that are listed together
with State, government bodies and municipalities as subjects not permitted to
collect signatures. While the rationale for the exclusion of public bodies is
clear, the same cannot be said about private companies, once it is accepted
that the job can be contracted upon payment and it is not a voluntary exercise.
Same comment for Article 66.
b) The only reasonable basis on
which a signature list can be rejected should be that it does not contain the
number of valid signatures required by law.
106. Article
57.2
It provides that the use of
improper pressure or incentives to persuade voters to sign a voter list “can”
be the basis for invalidating the signatures and/or a refusal to register or
cancellation of the registration of a candidate or candidate list. This harsh
sanction should only be imposed as a result of serious and repetitive actions
of such kind. The Code must be quite clear as to whether the court does, in
fact, have a discretion to apply these sanctions and, if so, how that
discretion should be exercised.
107. Article
57.4
Except in municipal elections,
voters may only sign in support of one candidate or list of candidates. It is
difficult to see why voters should be prohibited from signing more than one
form in any event, particularly when it is extremely difficult to verify
whether voters have in fact signed in another list. The rule should be removed.
108.
Article 57.5
a) In order for the voter to make a reasonable choice,
information concerning all candidates or a list of candidates should be
included.
b) See comments on Article 53.3.
109. Article
57.9
The last sentence is difficult to understand, possibly due
to a problem of translation.
110.
Article 57.12
It is unclear why the number of voters signatures should
not exceed 15% of the required number defined in the Code. This provision
should be deleted. See also Article 66.6.
111. Article
58.1
The experience of the 2000
parliamentary elections showed that the timeframe for submitting registration
documents to the relevant Constituency Election Commission was not adequate for
candidates in single-mandate constituencies. Some candidates could not
participate in the election campaign in due time because some appeals were
still pending. It is of concern that this remains unaltered in the Draft
(Article 58.1). The period for submission of registration documents should be
moved from 55-35 days to 65-45 days before polling day. This change will be
consistent with the start of the election campaign on the 45th day
before polling day (Article 76.3).
The Code (as a duty of the election commissions) should
also ask the candidate about his/her finances (income, properties owned,
inheritance, etc.) at the beginning and at the end of his/her mandate, in order
to compare and analyse them. Regarding these observations, the election commission
could penalise the candidate if the finances’ evolution seems disproportionate
(between before and after the mandate).
113. Article
58.5 and 60.3
Article 58.5 and 60.3 make the
only references to election deposits in the entire Code. It is unfortunately
far from clear what these articles mean or how they will work. Article 58.5
appears to envisage that a candidate or party can pay a voluntary deposit when
submitting their registration documents, not instead of signatures but in
addition. If registration is refused on the basis of violations of the rules on
collecting signatures, the candidate or party may still be registered by
surrendering the deposit (this appears to be the most rational interpretation
of the first part of Article 60.3).
There is no provision for the refund of such registration
deposit should the candidate or party exceed a certain score.
It is strongly recommended that these parts of the draft Code are revised.
The 25% of the election funds are too high a deposit,
especially for new candidates or candidates who do not come from a political
party.
114.
Article 59
The procedure for checking the
signatures is substantially the same in the Code as under Article 43 of the
Milli Majlis law. The ODIHR and Venice Commission comments have not been implemented
and are still valid. 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 Article 59.14.
115. Article
59.8.3
The provision from Article 59.8.3
is superfluous because of Article 59.8.4.
116. Article
59.2
The validation of
signatures must be completed by the start of the election campaign.
If Article 59.2 is read together with Articles
60.1 and 76.3, this requirement does not seem to be satisfied for election
campaign by individual candidates.
117. Article
59.14
As previously stated in Article
59, Article 43.14 should therefore be deleted and replaced by a
rule which proceeds from the basis of valid signatures. This remark applies
even more for the present draft article.
See Article 60.2.4.
118.
Article 60
These comments are applying to Articles
69 and 108, and see the comments on Article 60.2.
119. Article
60.2
a) Does the relevant Election Commission have to submit a
copy of the decision to register the candidates to all voters? By a system of
posters, on sites reserved for public posting (or on notice boards)?
See Article 88.6.
b) Article 60.2 sets out a list of reasons for refusing a
registration. This list must be very clearly defined and exhaustive. At
present, it is not; the last item on the list is “other reasons established
by this Code”. There are too many possible reasons for the refusal of a
list of candidates. It must not be forgotten that the right to stand for
election is one of the most important human rights, as protected by the
European Convention of Human Rights. In any event it is imperative, where
possible, that candidates and parties are given an opportunity to correct any
errors or defects which have led to their registration being refused. In such
cases the party or candidate should be invited to resubmit the application
within a reasonably short period. It is advised to add that refusal of
registration is subject to the principle of proportionality.
See Articles 69.2, 89.5 and 108.1.
120.
Article 60.2.4
Comment on Article 59 applies to this article too.
“Other reasons
established by this Code” is too imprecise. It should read: “Other reasons for refusal of registration as
established by this Code”.
122.
Article 60.3
The point on the electoral deposit is not clear.
See the comment on Article 58.5.
123.
Article 60.5
The norm is repeated again under Article 108.2.1,
where it is specified that the “invalidity” must be of importance. It is
suggested that repetitions are avoided and that paragraph be deleted. The issue
is treated more thoroughly under Article 108.
124. Article 62
See comments on Article 48.
125. Article 63.1
See comments about Articles 12 and 13.
126.
Article
63.2
According to the second sentence
of the article, the campaign groups on referendums seem to be linked to a
constituency. The purpose of this provision is unclear.
127.
Article 64
The provision about citizens with dual citizenship is too
severe. These citizens should be able to choose Azerbaijani citizenship to
exercise their civic rights.
Appears to be a repetition of Article 14.3.1.
128. Article
65.4
The reference in Article 65.4 to Article
65.2 should be to Article 65.3.
129. Article
65.6
The article should make it clear
that a referendum campaign group representative who ceases to fulfil that
function may be replaced.
130. Article
65.7
According to Article 65.3 which refers to Article 64, authorized representatives cannot be
civil servants.
131. Article 66
See comments on Article 57,
especially Article 57.12.
132.
Article
67.2
There appears to be an
inconsistency between Articles 67.2 and 69.1 regarding the registration
of referendum campaign groups and between Articles 146.9 and 154.9
regarding the possibility of changing the order of a party list.
133. Article 69
See comments on Article 60.
134. Article 69.2
The comment for Article 60.2 applies here as well.
135. Article
70.3
It suggests that
candidates can retain their job in State positions, in apparent
contradiction with the previous paragraph (70.2) that requires them to
be released from their employment. This could be a translation mistake.
Paragraph 70.5 is clear on the prohibition of campaigning by these candidates.
Apparently, therefore, there could be candidates who work in State positions
that can retain their job as long as they do not campaign. But such campaign
limitation for registered candidates who are civil servants does not apply to
free air time on TV.
136. Article 72
See comments on Article 48.
137.
Article 74.3
a) The reason for
withdrawing candidacy: “illness that
seriously affects his/her health” is much too vague and does not mention
the body which determines whether this is the case. This body would also have
to be a court. This comment also affects Article
108.4 and Article
146.9.
b) In addition,
there is no convincing reason why a list of candidates should be withdrawn if
the first three candidates on the list are considered dead (or 25% of them).
The public will know of the deaths of candidates and will be able to form their
opinion on whether the list is still a good choice for them. The Code should
envisage that the list of candidates or the party which formed the list has to
inform voters about the “new” first three candidates.
Chapter Thirteen
About
Election Campaigns: The rules about election campaigns (often called
pre-election campaigns) are very similar, if not identical, to those stipulated
in the Law on Elections to Milli Majlis. The OSCE/ODIHR and Venice Commission’s
comments largely still apply to the draft Code.
Article 75.1
The words “Notwithstanding the right of freedom of
expression” should be put before “the
following have the right to conduct ...”. Otherwise the norm could be read
as a limitation of this right which is surely not the intention of the
drafters.
138. Article
76
a) There is a problem of
interpretation, essentially because of the hour indicated. The text is not
clear in the different paragraphs of this article about the end of the
campaign. If the election day is a Sunday, does it mean the
campaign finishes on the Saturday at midnight? So the campaign finishes at
midnight between Saturday and Sunday? Or, does it mean the campaign finishes on
the Friday at midnight, because it is one clear day before the elections?
For elections and referendums, pre-election and
pre-referendum campaigns should be prohibited on election (referendum) day and
the day before election (referendum) (Article 76.1, 76.3, 76.4 and 76.5).
b) It is recommended to avoid risks of troubles during the
campaign, also to provide for a possibility of response for a candidate, who
has been attacked by libel or speech by another competitor.
Article 76.1
The word “or” should be replaced by the word “and”.
This would better express the intention of the drafters and be a precise rule.
Article 77.1
The last two requirements are not acceptable. The “method
of collecting information” is not something which can be described shortly
and precisely and the “statistic figures of future results” is a term
which seems clear but which is not at a closer inspection (does it mean that
the mass media concerned must publish all statistics it has gathered?).
139.
Articles 78 and
79
Private media do not have to
publish pre-election campaign material, but they must respect equality when
information about candidates is displayed.
See comments on Article 19.1.
140.
Articles 80 and 81
It is not clear whether the term “the TV-radio companies and periodicals” means all such mass media
(State-owned and private) or just the State-owned media.
Free air time and space in the
election campaign.
It is provided that only election/referendum participants
who have achieved a fixed threshold can retain the funds allocated to them by
the election commissions and not to pay the cost of free air time and space
allocated. The threshold is, in some cases, quite high as for referendum
campaign groups (Articles 125 and 126).
The risk of fully paying the fees of “free air time and space” amounts to a
deterrent for campaign groups from taking part in the referendum campaign.
For candidates to Milli Majlis the 3% threshold for single
member constituencies and 1% for the Nation wide constituency (Article 160.1)
is a way to reduce the number of weak candidates and parties and push them
towards coalitions.
Though private TV and radio
companies can provide paid airtime for registered candidates, they have to
respect the principle of relative equality with the others. A medium cannot
provide airtime to a candidate and then not speak at all about the other
candidates during sections of “global” information (notably with Article 82.4).
142. Article
82.2
There is no conceivable reason why “referendum campaign groups members of which are more than 25 thousand
cannot use this airtime”.
143. Article
82.7
The provisions in the article on
the allocation of paid air-time and the reference to a leading journalist are
not clear.
144. Article
85.3 and 85.4
A minimum access of all
candidates to periodicals should be provided for.
145. Article
87.6
The possibility for observers to
attend pre-election meetings in military units is welcome.
The security and public order
forces must not block or disturb the meetings. They should be present near the
entrances but not inside.
147. Articles
88 and 89 in general
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.
148.
Article 88.1
(Former 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.
149.
Article 88.3, 88.4 and 88.5
(Former Article 56.3 to .5).
a) This provision would seem to
violate Article 10 of the European Convention of Human Rights. It is a
basic element of the freedom of expression that there is no (prior) censorship,
no prior restraint, no duty to deliver publications to authorities prior to
publication. Although the provision does not seem to condition publication upon
submission of the campaign material to the election commission, such a duty
would seem to violate the principle of proportionality since such a restriction
is not necessary in a democratic society. It is virtually certain that
opposing parties will bring illegal materials to the attention of the
authorities.
b) 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
88.9.
150.
Article 88.6
The information could be displayed on notice boards.
See Article 60.2, a).
151. Article 88.9
(Former 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.
See Article 88.3, 88.4 and
88.5.
152.
Article 89.1
(Former 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 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.
The only change in the draft code that reflects the
recorded comment is in Article 89.1, the new requirement of “force” in
the call to change the constitutional system. It is an improvement, but not
sufficient to protect the basic freedoms of speech during an election campaign.
The words “Subject
to the freedom of expression” should be included before “It is prohibited to abuse the mass media
during the conduct of the pre-election campaign”. This is important since
the terms “citizens’ honour and dignity”
are imprecise and can equally be abused. It is unclear what is meant by “other campaign forms that are prohibited by
law”. These should either be spelled out expressly or this part of the
sentence should be deleted.
153. Article
89.2.1
The article prohibits the giving of gifts and other
valuables to voters. This provision should make clear that items of nominal
value, such as badges, stickers and posters can be distributed freely to
voters.
154.
Article 89.3
(Former 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.
155.
Article 89.4
(Former Article 57.4). The formulation
“distribution and broadcast of
information which impugns the prestige, dignity, and honour of the candidate”
is problematical for two reasons: First, the provision must be limited to false
information. The distribution of true information, even if it impugns the
honour of a candidate, is in principle guaranteed by Article 10 of the European
Convention of Human Rights. Second, the term “prestige” is a very broad and imprecise term and should be deleted.
It is unknown as a possible limitation of the freedom of expression.
156. Article 89.5
(Former 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.
This rule certainly goes too far and violates the
principle of proportionality. It is unknown in other European election laws. It
would permit the cancelling of the registration of a candidate upon mere
insults (“of citizens honour and dignity”) or the violation of “other
rules”. The rule would be acceptable, however, if it would be limited
incitements to capture the government by force, or to change the constitution
by force, or to incite racial and religious hatred. In any case, there must be
a warning before action such as a cancelling of the registration can take
place.
The same applies for Article 108.1 and Article
60.2, b).
157. Article
89.6
The article requires law
enforcement bodies to prevent spurious and illegal pre-election publications
and materials. Again, “spurious” is a highly subjective term. Presumably
“illegal” materials are those produced otherwise in accordance with the
Code, but it is not clear why the law enforcement bodies need to be told to
enforce this part of the Code as opposed to others.
158. Article
89.7
This article gives the possibility to election commissions
to create a working group responsible for “observing the pre-election
campaign conducted in the mass media outlets”. Though it is a positive
innovation the draft does not provide sufficient details on the formation,
composition, powers and competencies of such a group. Its composition should
reflect the need for impartiality.
It should be made clear that only courts possess the power
“to stop illegal pre-election campaigning”.
159. Article
90.3
About the funds required to
organise an election and not transferred in time or fully, this is not a viable
provision to include in an Election Code. The money should be transferred to
the Central Election Commission and if it is not, the Central Election
Commission should seek an administrative remedy to force the relevant authority
to comply with its obligations to fund the elections. If any bank is to fund
the elections it is surely the Central Bank of Azerbaijan. The Central Election
Commission should not be left in the position where it is forced to run from
one bank to another trying to raise funds to pay for an election.
160.
Article 90.5
See the comment for Article 28.1.
161. Article
91.6
The words “and assistance” are unclear and should be deleted. If “services in
kind” are envisaged, this should be stipulated in the Code. In addition,
paragraphs 2 to 5 of Article 91 are missing in the English version of the
draft.
The provisions in Article 91.6.12
appear to be duplicated in Articles 94.1
and 94.2.
162. Article
92.2
The article should indicate the
time-scale, such as three working days, within which a bank must open and make
available a campaign fund account.
163. Article
92.3
It would be more appropriate to
prohibit the incurring of expenses after polling day, with all liabilities to
be settled within a short period thereafter.
164.
Article 92.4
Second and third items: the possibility for candidates to
withdraw is not suitable and could lead to pressure. At least, it must be
ensured that candidates can challenge their application for withdrawal if they
assert that they were coerced to withdraw.
See Article 93.1.2, 202.5
and 220.2 and 232.7.
165.
Article 94.4
The right to return unspent funds is perfectly
understandable; an obligation to do so is a completely different matter.
Implementation of the proposed rules will be very complicated and enormously cumbersome.
Candidates and parties will have to calculate the amounts to be returned as a
proportion of the unspent funds. They will then have to go the considerable
effort of tracing the original donors and returning the funds. Even for those
who made donations through a bank transfer this will be laborious, and for
other donors much more work will be required. Moreover, depending on how much
money is left unspent, and given the cost of making bank transfers to return
funds, the sums involved may well be tiny or in any event disproportionate to
the cost and effort of returning them. It would be far more expedient if
unspent funds were either transferred to party funds (in the case of donations
to political parties) or directly to the State.
Such remarks are also valid for referendums (Article 124.2 to 124.4) and Presidential
election (Article 157.4). See Article 226.
166. Article
95.3
To require three different financial reports seems
excessive. This is true given the fact that banks are required under Article 96.2. to report regularly about
the movements on the special accounts.
167.
Article 96.2 and 96.4
See the comment on Article 16.5.
168. Article
97.3
It does not seem to be fair to burden the employer of a
member of an election commission with the payment of his or her salary insofar
as the member does not continue to work for the employer during the relevant
time. After all, according to Article
90.1 the financing of the conduct of the elections is to be done by the
State budget. See Article 98.3.
169. Article
98.3
The comment for Article
97.3 applies to this provision as well.
The physical installation of the voting rooms must make
easier the movements of voters between the area with the ballot papers, the
polling booth and the ballot box.
171. Article
99.6
It provides that the ballot boxes must be prepared in such
a way that one can tell whether they are full after being sealed. It is not
clear what this means. If transparent ballot boxes are envisaged, this should
be made clear.
172. Article
100.2
The requirement that ballot
papers are numbered is a welcome enhancement of ballot security, as is the
proposed use of voting envelopes (Article 102.8). However, the Code
should make clear that ballot papers are uniquely and sequentially numbered. It
would also be very desirable for result protocols to be uniquely and
sequentially numbered. Moreover, the Special Part of the draft Code fails to
make the necessary references to the use of voting envelopes (Articles 166.3, 203.2 and 233.2).
173. Article
100.3
It should be made clear that the ballot paper is the same
(uniform) in the whole constituency.
174. Article
100.6
The Precinct Election Commission
should ensure that the number of ballot papers received accords with the number
stipulated by the Constituency Election Commission. The ballot papers received
should be counted at the same time that the ballot papers are stamped by the
Precinct Election Commission and a record made verifying that the numbers
tally. If they do not, the Constituency Election Commission needs to be
informed immediately.
175.
Article 100.8
See the comment on Article 35.6.
176. Article
101, 101.2
The voter should not have the
possibility of voting in another election precinct other than his territory of residence. So, he/she
must be registered on the voters list on the day of the election. There is a
too important risk of fraud, dual vote or several registrations.
177. Article
101.4
It would probably be wise to
leave a gap of one or two days between the period in which the Constituency and
the Precinct Election Commission can issue deregistration cards. This would
leave time for the extracts from voter lists where the issuance of such cards
has been recorded to be sent from the Constituency Election Commission to the
precincts.
“Other means” could be electoral notice boards for instance.
179. Article
102.2 and 102.3
“Almost impassable distant places” is too vague and should be
developed.
180.
Article 102.3
a) See the
comment on Article 35.6.
b)
Article 102.3 also provides that elections on ships and in distant places may
be held not later than ten days prior to polling day. This should surely read “not
earlier”.
c)
As regards the use of mobile ballot boxes, the article should make it clear
that requests to vote in this way may be made orally or in writing, directly to
the Precinct Election Commission or indirectly through another person, provided
always that the request is subsequently confirmed in writing (Article 103.2).
181. Article
102.5
a) The voter could sign the voters list not when he is
given the ballot paper but when he inserts it in the ballot box. It presents
two advantages: first, the two operations are made in the same place in the
polling station, and in front of the chairman and secretaries, quasi
simultaneity is important; secondly, if there is a registration problem on the
voters list or trouble in the voting room or other problems during the process,
the voter will not have signed the voters list without casting their vote.
b) Another point: a member of the polling station should
check at the entry of the polling station the identity of voters.
182. Article
102.6
It
is strongly recommended that ballot papers are not signed at all, or if they
are, that they are signed before voting commences, not as they are issued. The
danger is that a signature may be written in such a way as to identify the
ballot paper and compromise the secrecy of the ballot.
183. Article
102.7
The third sentence of Article 102.7
raises serious problems. The provision in this paragraph should deal
only with the situation of disabled people.
The Precinct Election Commission
must invalidate the ballot papers for which the voters have been influenced, if
they have not voted at that point. On the contrary, an observation must be made
on the final polling station’s protocol, explaining the circumstances and the
number of votes spoiled.
185. Article
102.12
The article permits officials of
local executive authorities to be present in polling stations to preserve law
and order. Local officials have no place in polling stations whatsoever except
to cast their own vote and must leave immediately as soon as they have done so.
Given the substantial problems of improper interference encountered in recent years,
the Code should leave no doubts about this essential rule. Law enforcement
agents should enter polling stations only when requested to do so by the
Precinct Election Commission to restore,
not preserve, order, and must leave again immediately once order has been
restored.
186. Article
102.13
It States that a separate
document about a spoiled ballot is prepared “later” “immediately”.
It must be one or the other. The draft Code should indicate the procedure by
which a spoiled ballot paper is cancelled (cutting in half is recommended).
This provision contains very broad possibilities for using
mobile ballot boxes.
It is advisable that the drafters reconsider the use of mobile ballot boxes in
order to decrease the possibility of fraud.
188. Article
103.2
It is strongly
recommended that voters using the mobile ballot box are required, as under the
existing law, to record the details of their ID document in their application
to use the mobile box.
189. Article
103.3
a) The mobile ballot box must be in use only on the day of
the election. The number of requests must be verified by the superior election
commission. These requests must be added in a separate document, attached to
the final polling station’s protocol.
b) The mobile ballot box team should be permitted to take
a defined small number of ballot papers (perhaps three) to allow for spoiled
ballots.
c) “… are marked on the voters list”: By whom?
190. Article
104
When voting hours end, the Precinct Election
Commission’s chairperson announces loudly: “only voters who have already received
ballot papers and those in the voting compartments (booth) can vote.” It is an accepted rule that voters already in the queue
are allowed to vote.
191.
Article 104.1
Article 104.1 sets out the steps to be taken before the
ballot papers are counted. This should include a count from the voter list and
supplementary list of voters who have voted using a deregistration card and of
voters who have been issued with ballot papers for use in the mobile ballot
box. Both items should be recorded in the final protocol (not in a separate
act) so that unusually high numbers are evident and clearly recorded.)
See Articles 205.4, 206.14 and 234.3.
It is advisable to add a precise list of cases of
invalidate ballot papers.
193. Article
104.4
This article must be clarified.
If there are two or more ballot papers in the same envelope, the commission
must count one ballot if they are all identical. If there are differences, of
any sort, or if ballot papers are
blank, they must be all invalidated.
194. Article
104.7
Do the votes have to be recounted immediately after the
announcement of the results?
195. Article
104.9
It would preferable to transfer
all election material to the relevant Constituency Election Commission together
with the protocols within 24 hours after the polling day so that the
Constituency Election Commission can make necessary checks in case of
discrepancies in protocols.
196. Article
104.11
It should indicate that the third
copy of the Precinct Election Commission’s protocol must be displayed at the
polling station immediately and
remain on display for a reasonable number of days.
197. Articles
104.8 to 104.11 and 135
While the first copies of counting protocols are to be
sent immediately to the Constituency Election Commission, and the second copies
are to be kept by the secretary of the Precinct Election Commission, the third
copy is displayed on the board for information.
Only in the special sections (Articles
174.1, 209.1) is it provided that upon requests by observers, registered
candidates, agents of political parties and blocs, protocols are submitted to
the requesting parties, after members of
election commissions approve information on voting results in electoral
precincts and voting results in the constituency and the relevant protocols.
The quoted rule should be moved to the general section,
being valid for each election.
Moreover, it is recommended that the norm be clarified in
the sense that observers, and other subjects entitled, are to be given a copy
of the protocol immediately after its signature and before delivery to the
superior commission.
The issue of aggregation of results has been of great
importance in past elections in the Republic, and the law must give any
interested party or observer the possibility double checking the regularity of
the aggregation process from the Precinct election commission to the
Constituency Election Commission.
198. Article
104.15
It allows the Precinct Election Commission to reconstitute
itself and issue a “repeat” protocol if it discovers that it made a
mistake in the original one. This is an extremely unusual provision and creates
substantial scope for abuse. The Precinct Election Commission should make sure
that it counts the ballot papers and completes the protocol carefully and
accurately. Once the protocol has been signed and the first copy sent to the
Constituency Election Commission, the Precinct Election Commission should seal
the election materials and consider its work over, unless the Constituency
Election Commission spots an error and requires a recount. There should be no
scope for the Precinct Election Commission to start re-examining the ballot
papers and revising the results once the first protocol has gone, at which
stage observers and representatives are also likely to leave. There should be
clear finality in the work of the Precinct Election Commission. The same
concerns apply in the Constituency Election Commissions.
See the same remark for Articles 168.11,
205.8 and 235.10.
199.
Article 105
See the comment on Article
16.5.
200.
Article 107
a) Apparently there is no
harmonisation between Article 107 (107.2
and 107.4 especially) and Article 45.3 on complaints about
decisions on voters’ lists. Terms are different, and no regulation is set about
the relationship between complaint to the superior commission and to the court.
See comments on Article
45.3.
b) There should be short time-limits for lodging and
deciding appeals (three to five days for each at first instance) and an
explicit provision according to which “the applicant’s right to a hearing
involving both parties must be protected”.
201. Article
107.1
A basic rule of the rule of law requires that time limits
for complaints can only begin to run from the time when the person concerned
had an opportunity to take notice of the decision. Therefore the following
phrase should be added at the end of the provision: “The time limit of 7
days begins to run with the publication of the decision or from the time when
the persons concerned could take notice of it”.
202. Article
107.7
Under this article, a person
candidate who has been elected cannot refuse to testify as a witness in
administrative, civil or criminal investigations regarding complaints about
violations of citizens’ rights. This rule, however, requires modification: the
rule against self-incrimination requires that such evidence cannot be
admissible against the candidate in subsequent proceedings against him. Unless
this is made clear, the rule as presently formulated may well violate the
candidate’s right to a fair trial under the European Convention on Human
Rights.
203.
Article 108
This article must be compared to Articles 60
and 60.5.
It contributes to the confused nature of the Code, because
these articles separate cases of refusal of registration of candidates.
It sets out numerous circumstances in which a candidate’s
or party’s registration may be refused or cancelled. These measures (in
particular, cancellation) are obviously draconian steps which should only be
imposed in response to serious violations of the Code. Unfortunately, this is
not reflected in this article, in which many of the violations are broadly
defined. The Code should encompass a range of sanctions, up to cancellation of
registration, to ensure that breaches of the rules are punished
proportionately. Otherwise, these rules give considerable scope for abuse.
204.
Article 108.1
See comments on Articles 89.5 and 60.2.
205.
Article 108.2
The article lists a number of
cases when the election commission can refuse to register a candidate, in cases
of specific violations of rules of conduct provided by the Code. Violations are
rather specific, and their number has to be considered exhaustive. It would be better, however, to specify the obligation
of refusal, rather than the power to do it, and to limit such an obligation
only to serious offences, after a first public warning. However, the cases
under 108.2.9, 108.2.11 and 108.2.12 seem too vague in several aspects for such
a sanction as the refusal of registration: the paragraphs must be rephrased and
the last one should be deleted.
See Article 60.5.
206. Article
108.2.2
This provision must take into
account that the freedom of expression guarantees political advertisement
before the actual election campaign begins. Therefore the words “Notwithstanding the right to freedom of
expression” should be included at the beginning of the provision.
207. Articles
108.2.5, 108.2.6, 108.2.7 and 108.2.8
0.05% is much too low to satisfy
the principle of proportionality. A lesser sanction than a refusal to register
should be found (e.g. public condemnation, payment of a fine).
208. Article
108.2.9
These grounds for refusal to
register are far too broad. For example, they could be understood as making it
impossible for the owner of a company to register as a candidate. Instead, it
should be ensured that rich or influential people do not abuse their powers.
They should not be excluded, however, because they occupy influential positions
in their professional life. This would be a violation of their human right to
stand for election.
209. Article
108.3
It must be made clear that the
principle of proportionality applies in all situations covered by this
provision. The cancelling of a registration is a denial of the right to be
elected. This may only be done under compelling circumstances. Such
circumstances are not present in the cases of Article 108.3.3, and Article
108.3.9.-12.
210. Article
108.3.2
The translation of this provision
seems to be incomplete. In any case, it must be ensured that soldiers have an
opportunity to develop their own judgments and to take notice of the election
campaign.
211.
Article 108.4
Redundant with Article 74.3. See comment on Article 74.3.
This is a disproportionate sanction that has no justification. This provision
should be repelled.
212. Article
108.5
This provision is far too general
and open to all sorts of abuse and should therefore be deleted. The term “abuse” is unclear. It does not satisfy
the requirement of Article 10 of the European Convention of Human Rights.
213. Article
109.1
Here again, the principle of
proportionality must apply. Small or technical violations of certain rules do
not justify a cancellation of elections.
214. Article
110
The
terms "impugning the honour and dignity of a candidate" could
lead to abuse. The definition of criminal offences should take place in
criminal legislation. The following language should
be added to Draft Article 110.1.6: “Notwithstanding the right of
freedom of expression” at the beginning of the draft article and “according
to the existing general legislation on defamation” at the end of the draft
article.
215. Article
110.1.1
It must read “other illegal methods”.
216. Article
112
It provides that issues directed
to “excessive limitation” of human rights may not be put to a
referendum. This is obviously a very ill-defined test. The issue, surely, is
whether the proposal being put to a referendum would give rise to breach of
human rights under Azerbaijan’s Constitution or would violate Azerbaijan’s
human rights obligations under international agreements, including the European
Convention. The Constitutional Court is perhaps best placed to decide these
issues.
217. Article
116
The draft Code should clarify the role of Milli Majlis and
the President in the decision on how a referendum should be conducted. Both
constitutional provisions (Articles 95
and 109) quoted by Article 116 of the Code provide that Milli Majlis and
the President “appoint” a referendum. There has to be a difference or a
distinction in their respective roles, which is a constitutional matter.
The limitations under Articles
112 and 116.2 are fair.
It is also unclear as to when the proper authority will
allow the registration of a referendum issue: something similar to the ruling
from the Constitutional Court as per Article
113 on changes to the Constitution. No mention of the matter is made in Chapter 11 of the Code, under “registration of referendum campaign group”.
It also appears unreasonable that a decision be left to the Milli Majlis or the
President, because it would happen after the collection of signatures.
If it is meant that Central Election Commission has such a
preliminary power, then a specific provision should be entered in the Code.
218. Article
116.2
It must read “conduct of referendum”, not “conduct of elections”.
219.
Article 124.2
to 124.4
See Article 94.4.
220.
Articles 125 and 128
In these articles, a referendum
campaign group is obliged to repay the campaign costs received from the State
and to pay the value of free airtime provided under the Code unless at least
half the voters in the constituency where the referendum took place voted in
favour of the proposal. First, the Code should indicate whether this means half
the registered voters or half the voters who participated in the referendum.
Second, and more importantly, this rule is manifestly unfair and dangerous. It
is unfair because the campaign group has already raised a very substantial
number of signatures in order to conduct the referendum in the first place.
That fact demonstrates that the issue is important for a substantial proportion
of the population and is worthy of consideration by means of a referendum. It
is a dangerous rule because it is likely to impose a very substantial
disincentive on the conduct of referendums. There will be very few groups of
citizens who can afford to take the risk of pursuing a referendum, losing the
referendum and facing what are in effect substantial penalties. If Azerbaijan
wishes to embrace the notion that referendums have a significant part to play
in a democratic society, these rules should be removed.
See Articles
80 and 81.
221. Articles
125 and 127
The relation between the rule
that successful referendums do not return funds received from election
commissions (Article 125) and the
rule that unused money must be transferred to the State budget (Article 127) is not clear. The principle of equality requires that
unused funds be returned to the State budget (if they originate from there), no
matter whether the campaign group was successful or not.
Most of this part about the general voting process is
superfluous because it has already been specified in Chapter Fifteen.
a) The terms “Referendum Commission” and “Election Commission” are used
indifferently. It is preferable to use only “Election Commission” for all polls and all levels of election
commissions.
See also Article 133 for
the same problem.
b) It would seem expedient for
the Central Election Commission, which is a permanently functioning body, to
oversee both referendums and elections.
224. Articles
132, 167, 204 and 234
The counting protocols do not
include information on the number of voters casting their ballot with voting
cards. Given the sensitivity of the matter, the number of voters who cast their
ballot with voting cards, through not being on the voters list, be added to
each protocol (see comment under Article
101).
225. Articles
133
See comment on Article 130.4 and 130.5, a).
226.
Articles 134.2
and 136.3
a) Such provisions are not adequate for a referendum. It
is inadmissible to apply the same rules as in one-member constituencies. The
rules defined in Article 134.2 should apply only at national level.
See also Article 205.2.
b) Repetition concerning the participation of voters.
227. Article
136.1
The article envisages the
publication of the final referendum result not later than ten days after the
referendum. The publication of “final results”
does not presuppose that all possible complaints have been finally determined,
otherwise the ten days period could be too short.
228. Article
136.3
It provides that a referendum is
valid if more than 25% of voters on the voter lists have participated in more
than half of the referendum constituencies. As regards constitutional
amendments, which require approval by referendum, this is a surprisingly low
threshold.
229. Article
137.1.1
It is not clear
what situations are covered by this provision.. It should be formulated in a
more precise way.
Remark: About the referendum
of 24 August 2002, the mixed system has been abolished.
231.
Article 143
(See the comment about Article 13.)
232. Article
144
It is not clear how Article 144,
which is referred to in Articles 150.1 and 150.2, applies to those articles.
233.
Article 145.1
See comments on Article 9, b).
Does it mean that one paragraph excludes the other? Does
the deadline mentioned in Article 145.4 have priority over Article 145.5?
It is possible to simplify (“… or …”).
235.
Article 147.2
There are close to 8 million
inhabitants in Azerbaijan. Divided into 100 electoral constituencies this would
mean that there are 80,000 inhabitants in every constituency. Between those
80,000 inhabitants are perhaps 60,000 voters. 1% of those voters would be 600.
Therefore, the required number of signatures should not exceed 600 .
See Point 9 of the General comments.
It is advisable to envisage a reimbursement with documents
to prove these expenses.
Same remarks as Chapters Thirteen and Fourteen. The provisions of Chapter Twenty
four are often repetitive.
It would be preferable not to
allow any withdrawal of candidates, in order to avoid pressures (see previous
comment on Article 92.4). If
withdrawal is admitted, it seems difficult to envisage a correction of the
names of candidates on all ballot papers. It will depend on the term between
the new information and the election day. It could be possible to inform the
voters in the polling station, (by a poster) on a notice board for example. See
notably Article 202.5.
238.
Article
157.4
See comment on Article 94.4.
239.
Article 158
The provision does not envisage
the possibility that large donations be split into smaller pieces in order to
circumvent a publication duty. Perhaps a provision should be included according
to which this provision may not be circumvented by splitting a donation. This
comment also applies to Article 225.1.
240. Article
160.1
For the third indent, the
expression “which have withdrawn list of candidates due to the compelled
circumstances” is unclear.
241. Article
163.9
The meaning of the first indent is unclear.
242. Chapter
Thirty
See Chapter Fifteen (Section
Four); the text is often repetitive.
243.
Article 164.4
See the comments on Article 53.3.
244.
Article 165.3
See the remark in Article 1, a).
245.
Article 166.3
See the remark in Article 1, a).
246. Articles
167.3, 204.2 and 234.3
The draft does not provide a
clear definition of the term “supplementary
voter lists”. It should also be more explicit about the rules and documents
required to be included in the supplementary voter lists.
247.
Article 168
Article 169.14
provides that the Central Election Commission can decide to recount the votes
in the relevant constituency in case of mistakes, corrections or discrepancies
in the protocols.
A similar norm should be applied to Constituency
Commissions: in such cases, the decision to recount would be a necessary
consequence of corrections or discrepancies in the Precinct Elections
Commissions’ protocols.
The article provides that a
Constituency election commission can
consider elections void in certain circumstances. This is a clearly not a point
on which any discretion can be exercised: the word “must” or “shall” should be
used.
The text is not clear (“…
can consider …”).
249.
Article 168.11
See the remark about Article 104.15.
The number of voters should be determined on the basis of the numbers of signatures on the
voters list compared to the number of
ballot papers found in the ballot box.
251. Article
169.1
The Central Election Commission has five days after voting
day to summarise and determine the results in the nationwide constituency. It
is difficult to see why so much time would be needed. Such a delay is likely to
undermine public confidence in the integrity of the electoral process.
Similarly, the Central Election Commission has 60 days to announce the final
results of parliamentary elections (Article
174.4). There is no evident justification for such a lengthy delay.
Article 169.7 refers to a threshold of 6%. This should
clearly be 5% (see Article 169.3).
253. Article 169.14
See comment on Article
168.
The Code should not indicate a
time-limit for the submission of the results to the Constitutional Court, except
at the end of all complaints (from candidates, former candidates or voters).
255. Article
171.3
The addition of the sentence: “The Constitutional Court may extend the
deadline for another 10 days if the checking is so complex that it requires
more time” is suggested.
If the Constitutional Court
judges that the results are not completely correct, it can annul the elections
partially (in one or more constituencies) or in totality. New elections are
scheduled in the territory in question.
“… a deputy, from another constituency, cannot …”
The rule of 25 days is maybe a
little strict. The deputy could submit the justification in a term of two
months at most. But in the case of incompatibility, it must be exclusively the
Constitutional Court which could remove the deputy, and not the relevant
election commission.
Considering results which are submitted to voters,
candidates, mass media, etc., is it advisable for election commissions to
submit them after the announcement by the Constitutional Court?
260. Article
174.3
The time of publishing the
results from individual precincts is an exceedingly valuable rule although it
is difficult to see any reasons for such a long period. The publication of
detailed results should be more expeditious so that complaints can be lodged in
case of discrepancies in protocols. It should extend to all national elections,
including presidential elections. Transparency would be further enhanced if the
Central Election Commission published the full results of national elections,
including precinct elections, in a single source. This could be done relatively
cheaply on a government website.
The references are understood to Article 89.1 and
not 89.2 of the Constitution.
262. Article
175.4
The question of the prohibition of political parties is
not addressed here in detail. However, it should be reminded that, under Article
3 of the additional Protocol from the ECHR, the prohibition of a political
party does not allow to deprive the members of Parliament belonging to this
party from their parliamentary mandate.
263.
Article 179
See the comment about Article 13.
The limit of 100 days prior to the election day for the
nomination of the candidates is too short a time-limit for the political
parties, concerning the campaign notably.
The candidate must have the
possibility appealing this decision to the Court of Appeals or the
Constitutional Court.
In the case of postponement of
Presidential elections, who will carry on the Presidency in the interim?
267. Article
187
Article 187, which deals with
payments to presidential candidates, appears to conflict with Article 71.1.
It is advisable that the candidate has to mandate another person to
open a special election account for him/her. The Code should replace “may request” by “must request”.
269. Article
194.5
The candidate cannot be held personally responsible for
violations by other persons which are not his fault. He may be held
responsible, however, for violating his duties of supervision.
270. Article 201.3
See comments on Article 53.3.
This is a too short notice (25
days) to edit and distribute ballot papers.
272.
Article 202.5
On the withdrawal of candidates,
see comment on Article 92.4.
273.
Article 203.2
See the first remark in Article 1, a).
See remark about Article 104.1.
275.
Article 205.2
Presidential elections should be
declared void for the reasons mentioned in Article 205.2 only by the Central
Election Commission at national level.
See comment on Article 134.2.
276.
Article 205.8
See the remark about Article 104.15.
277. Article
206.1
The Central Election Commission
has only five days in which to finalise the election results before submitting
them to the Constitutional Court. Again, this appears to leave insufficient
time for complaints and appeals to be finally determined.
The protocol should be signed
only by members having the decisive right to vote.
It seems to be difficult to
organise a recount of votes with participation of members of the Central
Election Commission if there are several recounts in different constituencies.
There should be the possibility to order a the level of a polling station.
280.
Article 206.14
See the remark about Article 104.1
a).
Article 206.14.4-5: same sentence; it is maybe a problem
of translation.
Article 206.14.6 must be incomplete.
282. Article
207.1
Does it mean that if there are
only two candidates, the candidates obtaining more votes is elected without
reaching the majority of 2/3 of the votes in the first ballot? Compare to Article
206.11 and Article 101.2 of the Constitution.
If there is again less than 25
percent of voters included on the voters list participated in the repeat voting, this article should
indicate if there is a third round organised, and in which conditions.
Such an important decision should
be a decision from the Constitutional Court.
The Precinct Election
Commissions’ protocols should be posted immediately at the polling station (see
Article 205.6).
What about the electoral system for the municipalities?
Possibility of a list of candidates?
288. Article
211.1
Municipal councils are elected by the citizens of the
Republic of Azerbaijan, on the basis of a plurality system with multi-mandate
constituencies.
There is no mention of the Venice Commission suggestion
(Guidelines on Elections) according to which “it would be advisable for foreigners to be allowed to vote in local
elections after a certain period of residence”.
The number of municipal members
should be more important considering the number of people in each constituency.
Notably regards to the provision
of Article 239.
290.
Article 213
See the comment about Article 13.
It would be better to authorise the election of citizens
to Municipalities as soon as they are 18 .
Does this include persons with dual citizenship?
291. Articles
213 and 215.1
See the comments in the Article 9, b) and d).
292. Article
216 and 220.5 and 220.9
Do political parties have the right to propose candidates
without collecting signatures? If not, they should not be allowed to withdraw
candidates, and Article 220.9 should be deleted.
See the remarks about Article 60.2 b)
and c).
294.
Articles
220.2 et seq., 232.7
On the withdrawal of candidates,
see comment on Article 92.4.
295. Article
222
Due to the number of municipalities, this article should
be revised in order to apply only to local media and to allow for airtime at
national level for these parties which represented in most or a big number of
municipalities.
296. Article 226
See comment on Article 94.4.
297. Article 231.2
See comments on Article 53.3.
298. Articles
232.6, 233.2 and 235.2.2
See Article 1, a).
299.
Article 234.3
See the remarks about Article 104.1.
300. Article
235.3
Second item: in what cases may a court cancel the
election?
301.
Article 235.10
See the remarks about Article 104.15.
It is advisable to shorten the time-limit about the
determination of results.
303. Article
235.5
Multi-mandate
districts elected by plurality votes
can cause electoral confusion and encourage many abuses. They can also produce
very disproportional results.
Conclusions
The adoption of a single Code
governing national elections and referendums is to be welcomed. This
codification should ensure greater consistency in the rules governing
referendums and all forms of elections.
A certain number of
recommendations previously made by the Venice Commission and the OSCE/ODIHR are
now reflected in the draft Code, such as: the publication of constituency
results; the threshold for allocation of seats; the use of numbered ballot
papers and envelopes; the annual update of voters’ lists.
However, this preliminary
assessment details several points that must be improved in the draft Code. The
most important points are as follows:
- The rules on the formation of electoral
commissions remain unchanged. The composition of these election commissions
is important, as is the training of members of polling stations; when
neglected, it could jeopardize the impartiality of electoral administration.
Moreover, these commissions have large powers and too many duties with not
enough members to fulfil them. In the same way, these election commissions
should be formed earlier than stipulated in the Code.
- Provisions on transparency
in the superior electoral commissions, particularly regarding the issuance of
protocols to interested parties, must be substantially enhanced. For instance,
security measures around the production and distribution of protocols should be
increased. Existing laws and the draft Code provide that protocols of election
results are issued at the level of Precinct election commissions, immediately
at the conclusion of the count. It is absolutely essential that this rule isbe
extended, in the General Part of the Code, to the Constituency election
commissions, so that all interested parties can audit the election results from
the polling station level up to the central level.
- The draft Code is very detailed
and complicated; there are major repetitions, which should be avoided.
Several provisions contain minimal differences between the different types of
elections, which results in a high risk, for inexperienced candidates or political
parties, to violate certain technical norms of the Code.
- The sanctions for
violations of norms must be proportionate. Several provisions establish too
severe sanctions.
- The rules on consideration of complaints
are likely to be inefficient in practice and deny voters and other interested
parties of a timely and effective remedy. They also deny adequate access to a
court for the resolution of election disputes. In summary, election contestants
should have the possibility of applying to the relevant court in all cases of
refusals by election commission.
- About suffrage and voter
lists, the draft Code should set out explicit obligations for the Precinct
Election Commission in verifying the accuracy of the information provided by
the local authorities.
- The rules on the number of signatures
required in order to register a party list or presidential candidate remain
excessively stringent. Moreover, the possibility to annul a registration should
be exercised only by a court. Finally, voters should be permitted to sign
signature lists for more than one candidate or party list in all elections.
- Several provisions must be
improved regarding the election campaign, such as the campaign period,
or the free air timeairtime
and space during the campaign.
- The lack of provision on
securing election observation by non-partisan domestic observers is a
serious shortcoming. In summary, the draft Code seems to establish diverse
rules for different types of observers. Domestic and international observers
should enjoy the same rights and duties, and the Code should clearly define who
cancould be
accredited as an observer.
- It is essential that
cancellation of a candidate’s or party’s registration, or refusal to
register, be a sanction of last resort. Candidates and parties must be given an
opportunity to correct minor defects in their registration papers.
- Regarding election funds,
several provisions must be improved, notably the provisions pertaining to the
reimbursement of the public funds that candidates receive in support of their
campaigns.
- The draft Code should provide
for the announcement of preliminary results.
- The draft Code should improve
the guarantees given to the right to vote, free suffrage and freedom of
expression, which are a background of several comments on the preliminary
assessment.
