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Strasbourg, 23 May 2003
Opinion no. 190/2002
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CDL-AD (2002) 23 rev
Or.
Fr.
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
CODE
OF GOOD PRACTICE
IN
ELECTORAL MATTERS
GUIDELINES
AND
EXPLANATORY REPORT
Adopted by the VeniceCommission
at its 52nd
session
(Venice, 18-19
October 2002)
Contents
Page
INTRODUCTION.................................................................................................................... 4
GUIDELINES ON ELECTIONS
adopted by the VeniceCommission at
its
51st Plenary Session (Venice,5-6 July 2002)...................................................................... 5
EXPLANATORY REPORT adopted by
the Venice Commissionat
its
52nd Plenary Session (Venice,18-19 October 2002)........................................................ 13
General
remarks..................................................................................................................... 13
I. The underlying principles of Europe’s electoral heritage.................................................. 13
1.
Universal suffrage............................................................................................................... 14
1.1. Rule and exceptions............................................................................................................ 14
1.2. Electoral registers................................................................................................................ 15
1.3. Submission of candidatures................................................................................................. 16
2.
Equal suffrage..................................................................................................................... 16
2.1.
Equal voting rights............................................................................................................... 17
2.2.
Equal voting power............................................................................................................. 17
2.3.
Equality of opportunity........................................................................................................ 18
2.4.
Equality and national minorities............................................................................................ 19
2.5.
Equality and parity of the sexes............................................................................................ 19
3.
Free suffrage....................................................................................................................... 19
3.1.
Freedom of voters to form an opinion.................................................................................. 20
3.2. Freedom of
voters to express their wishes and combating electoral fraud............................. 20
3.2.1.
In general......................................................................................................................... 20
3.2.2.
Voting procedures............................................................................................................ 20
3.2.2.1. Postal
voting or proxy voting in certain circumstances....................................................
21
3.2.2.2.
Military voting............................................................................................................... 22
3.2.2.3.
Mechanical and electronic voting methods...................................................................... 22
3.2.2.4.
Counting....................................................................................................................... 23
3.2.2.5.
Transferring the results................................................................................................... 23
4.
Secret suffrage.................................................................................................................... 24
5.
Direct suffrage.................................................................................................................... 24
6.
Frequency of elections........................................................................................................ 24
II.
Conditions for implementing the principles....................................................................... 25
1.
Respect for fundamental rights.......................................................................................... 25
2.
Regulatory levels and stability of electoral law................................................................. 26
3.
Procedural safeguards........................................................................................................ 26
3.1.
Organisation of elections by an impartial body...................................................................... 26
3.2.
Observation of elections...................................................................................................... 29
3.3.
An effective system of appeal.............................................................................................. 29
3.4.
Organisation and operation of polling stations....................................................................... 31
3.5.
Funding............................................................................................................................... 31
3.6.
Security.............................................................................................................................. 32
Conclusion
.............................................................................................................................. 32
Introduction
On 8
November 2001the Standing Committee of the Parliamentary Assembly, acting on behalf of the
Assembly, adopted Resolution 1264 (2001) inviting the Venice Commission:
i.
to set up a working group, comprising representatives of the
Parliamentary Assembly, the CLRAE and possibly other organisations with
experience in the matter, with the aim of discussing electoral issues on a
regular basis;
ii.
to devise a code of practice in electoral matters which might draw,
inter alia, on the guidelines set out in the appendix to the explanatory
memorandum of the report on which this resolution is based (Doc. 9267), on the understanding that this code
should include rules both on the run-up to the election, the elections
themselves and on the period immediately following the vote;
iii.
as far as its resources allow, to compile a list of the underlying
principles of European electoral systems by co-ordinating, standardising and
developing current and planned surveys and activities. In the medium term, the
data collected on European elections should be entered into a database, and analysed
and disseminated by a specialised unit.
The following
guidelines are a concrete response to the three aspects of this resolution.
They were adopted by the Council for Democratic Elections – the joint working
group provided for by the Parliamentary Assembly resolution – at its second
meeting (3 July 2002) and subsequently by the Venice Commission at its 51st
Session (5-6 July 2002); they are based on the underlying principles of
Europe’s electoral heritage; lastly and above all, they constitute the core of
a code of good practice in electoral matters.
The explanatory
report explains the principles set forth in the guidelines, defining and
clarifying them and, where necessary, including recommendations on points of
detail. The report was adopted by the Council for Democratic Elections at its 3rd
meeting (16 October 2002), and subsequently by the Venice Commission at its 52nd
Session (18-19 October 2002).
The code
of good practice in electoral matters was approved by the Parliamentary
Assembly of the Council of Europe at its 2003 session – 1st part and
by the Congress of Local and Regional Authorities of Europe at its Spring
session 2003.
As
requested in the Parliamentary Assembly’s resolution, this document is based on
the guidelines appended to the explanatory memorandum to the report on which
the Assembly resolution was based (Doc.
9267). It is also based on the work of the VeniceCommission in the electoral field, as summarised in DocumentCDL(2002)7.
GUIDELINES ON ELECTIONS
adopted by the Venice Commission
at its 51st Plenary Session
(Venice, 5-6 July 2002)
I. Principles of Europe'selectoral heritage
The five principles underlying Europe'selectoral heritage are universal, equal, free, secret and direct suffrage.
Furthermore, elections must be held at regular intervals.
1. Universal suffrage
1.1. Rule
and exceptions
Universal
suffrage means in principle that all human beings have the right to vote and to
stand for election. This right may, however, and indeed should, be subject to
certain conditions:
i. the right to vote and to be elected must be subject to a minimum
age;
ii. the right to vote must be acquired, at the latest, at the age of
majority;
iii. the right to stand for election should preferably be acquired at
the same age as the right to vote and in any case not later than the age of 25,
except where there are specific qualifying ages for certain offices (e.g.
member of the upper house of parliament, Head of State).
i. a nationality requirement may
apply;
ii. however, it would be
advisable for foreigners to be allowed to vote in local elections after a
certain period of residence.
i. a residence requirement may be imposed;
ii. residence in this case means habitual residence;
iii. a length of residence requirement may be imposed on nationals
solely for local or regional elections;
iv. the requisite period of residence should not exceed six months; a
longer period may be required only to protect national minorities;
v. the right to vote and to be
elected may be accorded to citizens residing abroad.
i. provision
may be made for depriving individuals of their right to vote and to be elected,
but only subject to the following cumulative conditions:
ii. it must be provided for by law;
iii. the proportionality principle must be observed; conditions for
depriving individuals of the right to stand for election may be less strict
than for disenfranchising them;
iv. The deprivation must be based on mental incapacity or a criminal
conviction for a serious offence.
v. Furthermore, the withdrawal of political rights or finding of mental
incapacity may only be imposed by express decision of a court of law.
1.2. Electoral registers
Fulfilment of the following criteria is essential if electoral
registers are to be reliable:
i. electoral registers must be permanent;
ii. there must be regular up-dates, at least
once a year. Where voters are not registered automatically, registration must
be possible over a relatively long period;
iii.
electoral registers must be published;
iv. there
should be an administrative procedure - subject to judicial control - or a
judicial procedure, allowing for the registration of a voter who was not
registered; the registration should not take place at the polling station on
election day;
v. a similar
procedure should allow voters to have incorrect inscriptions amended;
vi. a supplementary
register may be a means of giving the vote to persons who have moved or reached
statutory voting age since final publication of the register.
1.3. Submission of candidatures
i. The presentation of individual candidates or
lists of candidates may be made conditional on the collection of a minimum
number of signatures;
ii. The law should not require collection of
the signatures of more than 1% of voters in the constituency concerned;
iii. Checking of signatures must be governed by
clear rules, particularly concerning deadlines;
iv. The checking process must in principle
cover all signatures; however, once it has been established beyond doubt that
the requisite number of signatures has been collected, the remaining signatures
need not be checked;
v. Validation of signatures must be completed
by the start of the election campaign;
vi. If a deposit is required, it must be
refundable should the candidate or party exceed a certain score; the sum and
the score requested should not be excessive.
2. Equal suffrage
This entails:
2.1. Equal voting rights:
each voter has in principle one vote; where the electoral system provides
voters with more than one vote, each voter has the same number of votes.
2.2. Equal voting power:
seats must be evenly distributed between the constituencies.
i. This must at least apply to elections to
lower houses of parliament and regional and local elections:
ii. It entails a clear and balanced
distribution of seats among constituencies on the basis of one of the following
allocation criteria: population, number of resident nationals (including
minors), number of registered voters, and possibly the number of people
actually voting. An appropriate combination of these criteria may be envisaged.
iii. The geographical criterion and
administrative, or possibly even historical, boundaries may be taken into
consideration.
iv. The permissible departure from the norm
should not be more than 10%, and should certainly not exceed 15% except in
special circumstances (protection of a concentrated minority, sparsely
populated administrative entity).
v. In order
to guarantee equal voting power, the distribution of seats must be reviewed at
least every ten years, preferably outside election periods.
vi. With
multi-member constituencies, seats should preferably be redistributed without
redefining constituency boundaries, which should, where possible, coincide with
administrative boundaries.
vii. When
constituency boundaries are redefined – which they must be in a single-member
system – it must be done:
- impartially;
- without detriment to
national minorities;
- taking account of the
opinion of a committee, the majority of whose members are independent; this
committee should preferably include a geographer, a sociologist and a balanced
representation of the parties and, if necessary, representatives of national
minorities.
2.3. Equality
of opportunity
a. Equality of opportunity must be guaranteed
for parties and candidates alike. This entails a neutral attitude by state
authorities, in particular with regard to:
i. the
election campaign;
ii. coverage
by the media, in particular by the publicly owned media;
iii. public
funding of parties and campaigns.
b. Depending on the subject matter, equality may
be strict or proportional. If it is strict, political parties are treated on an
equal footing irrespective of their current parliamentary strength or support
among the electorate. If it is proportional, political parties must be treated
according to the results achieved in the elections. Equality of opportunity
applies in particular to radio and television air-time, public funds and other
forms of backing.
c.
In conformity with freedom of expression, legal provision should be made to
ensure that there is a minimum access to privately owned audiovisual media,
with regard to the election campaign and to advertising, for all participants
in elections.
d.
Political party, candidates and election campaign funding must be transparent.
e.
The principle of equality of opportunity can, in certain cases, lead to a
limitation of political party spending, especially on advertising.
2.4. Equality
and national minorities
a. Parties representing national minorities must
be permitted.
b. Special
rules guaranteeing national minorities reserved seats or providing for
exceptions to the normal seat allocation criteria for parties representing
national minorities (for instance, exemption from a quorum requirement) do not
in principle run counter to equal suffrage.
c. Neither candidates nor voters must find
themselves obliged to reveal their membership of a national minority.
2.5. Equality
and parity of the sexes
Legal rules requiring a minimum
percentage of persons of each gender among candidates should not be considered
as contrary to the principle of equal suffrage if they have a constitutional
basis.
3. Free suffrage
3.1. Freedom
of voters to form an opinion
a. State
authorities must observe their duty of neutrality. In particular, this concerns:
i. media;
ii. billposting;
iii. the right to demonstrate;
iv. funding of parties and candidates.
b.
The public authorities have a number of positive obligations; inter alia, they
must:
i. submit the candidatures received to the electorate;
ii. enable
voters to know the lists and candidates standing for election, for example
through appropriate posting.
iii. The above
information must also be available in the languages of the national minorities.
c. Sanctions
must be imposed in the case of breaches of duty of neutrality and voters'
freedom to form an opinion.
3.2. Freedom
of voters to express their wishes and action to combat electoral fraud
i. voting procedures must be simple;
ii. voters
should always have the possibility of voting in a polling station. Other means
of voting are acceptable under the following conditions:
iii. postal
voting should be allowed only where the postal service is safe and reliable;
the right to vote using postal votes may be confined to people who are in
hospital or imprisoned or to persons with reduced mobility or to electors
residing abroad; fraud and intimidation must not be possible;
iv. electronic
voting should be used only if it is safe and reliable; in particular, voters
should be able to obtain a confirmation of their votes and to correct them, if
necessary, respecting secret suffrage; the system must be transparent;
v. very strict
rules must apply to voting by proxy; the number of proxies a single voter may
hold must be limited;
vi. mobile
ballot boxes should only be allowed under strict conditions, avoiding all risks
of fraud;
vii. at least
two criteria should be used to assess the accuracy of the outcome of the ballot:
the number of votes cast and the number of voting slips placed in the ballot
box;
viii. voting
slips must not be tampered with or marked in any way by polling station
officials;
ix. unused voting slips must never leave the polling station;
x. polling stations
must include representatives of a number of parties, and the presence of
observers appointed by the candidates must be permitted during voting and
counting;
xi. 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;
xii. counting should preferably take place in polling stations;
xiii. counting
must be transparent. Observers, candidates' representatives and the media must
be allowed to be present. These persons must also have access to the records;
xiv. results must be transmitted to the higher level in an open manner;
xv. the state must punish any kind of electoral fraud.
4. Secret suffrage
a. For the voter, secrecy of
voting is not only a right but also a duty, non-compliance with which must be
punishable by disqualification of any ballot paper whose content is disclosed.
b. Voting must be individual.
Family voting and any other form of control by one voter over the vote of
another must be prohibited.
c. The list of persons actually
voting should not be published.
d. The violation of secret
suffrage should be sanctioned.
5. Direct suffrage
The following must be elected by
direct suffrage:
i. at least one chamber of the national parliament;
ii. sub-national legislative bodies;
iii. local councils.
6. Frequency of elections
Elections must be held at regular
intervals; a legislative assembly’s term of office must not exceed five years.
II. Conditions for implementing these principles
1. Respect for fundamental rights
a. Democratic elections are not
possible without respect for human rights, in particular freedom of expression
and of the press, freedom of circulation inside the country, freedom of
assembly and freedom of association for political purposes, including the
creation of political parties.
b. Restrictions of these freedoms
must have a basis in law, be in the public interest and comply with the
principle of proportionality.
2. Regulatory levels and stability of
electoral law
a. Apart from rules on technical
matters and detail – which may be included in regulations of the executive –,
rules of electoral law must have at least the rank of a statute.
b. The fundamental elements of
electoral law, in particular the electoral system proper, membership of
electoral commissions and the drawing of constituency boundaries, should not be
open to amendment less than one year before an election, or should be written
in the constitution or at a level higher than ordinary law.
3. Procedural guarantees
3.1. Organisation of elections
by an impartial body
a. An
impartial body must be in charge of applying electoral law.
b. Where there
is no longstanding tradition of administrative authorities' independence from
those holding political power, independent, impartial electoral commissions
must be set up at all levels, from the national level to polling station level.
c. The central
electoral commission must be permanent in nature.
d. It should
include:
i. at least one member of the judiciary;
ii.
representatives of parties already in parliament or having scored at least a
given percentage of the vote; these persons must be qualified in electoral
matters.
It may include:
iii. a representative of the Ministry of the Interior;
iv. representatives of national minorities.
e. Political
parties must be equally represented on electoral commissions or must be able to
observe the work of the impartial body. Equality may be construed strictly or
on a proportional basis (see point I.2.3.b).
f. The bodies
appointing members of electoral commissions must not be free to dismiss them at
will.
g. Members of
electoral commissions must receive standard training.
h. It is
desirable that electoral commissions take decisions by a qualified majority or
by consensus.
3.2. Observation
of elections
a. Both
national and international observers should be given the widest possible
opportunity to participate in an election observation exercise.
b. Observation
must not be confined to the election day itself, but must include the
registration period of candidates and, if necessary, of electors, as well as
the electoral campaign. It must make it possible to determine whether
irregularities occurred before, during or after the elections. It must always
be possible during vote counting.
c. The places
where observers are not entitled to be present should be clearly specified by
law.
d. Observation
should cover respect by the authorities of their duty of neutrality.
3.3. An
effective system of appeal
a. The appeal
body in electoral matters should be either an electoral commission or a court.
For elections to Parliament, an appeal to Parliament may be provided for in
first instance. In any case, final appeal to a court must be possible.
b. The procedure
must be simple and devoid of formalism, in particular concerning the
admissibility of appeals.
c. The appeal
procedure and, in particular, the powers and responsibilities of the various
bodies should be clearly regulated by law, so as to avoid conflicts of
jurisdiction (whether positive or negative). Neither the appellants nor the
authorities should be able to choose the appeal body.
d. The appeal
body must have authority in particular over such matters as the right to vote –
including electoral registers – and eligibility, the validity of candidatures,
proper observance of election campaign rules and the outcome of the elections.
e. The appeal
body must have authority to annul elections where irregularities may have
affected the outcome. It must be possible
to annul the entire election or merely the results for one constituency or one
polling station. In the event of
annulment, a new election must be called in the area concerned.
f. All
candidates and all voters registered in the constituency concerned must be
entitled to appeal. A reasonable quorum may be imposed for appeals by voters on
the results of elections.
g. Time-limits
for lodging and deciding appeals must be short (three to five days for each at
first instance).
h. The
applicant’s right to a hearing involving both parties must be protected.
i. Where the
appeal body is a higher electoral commission, it must be able ex officio
to
rectify or set
aside decisions taken by lower electoral commissions.
4. Electoral system
Within the respect of the
above-mentioned principles, any electoral system may be chosen.
EXPLANATORY REPORT
adopted by the Venice Commission
at its 52nd Plenary Session
(Venice, 18-19 October 2002)
General remarks
1.
Alongside human rights and the rule of law, democracy
is one of the three pillars of the European constitutional heritage, as well as
of the Council of Europe. Democracy is inconceivable without elections held in
accordance with certain principles that lend them their democratic status.
2.
These principles represent a specific aspect of the
European constitutional heritage that can legitimately be termed the “European
electoral heritage”. This heritage comprises two aspects, the first, the hard
core, being the constitutional principles of electoral law such as universal,
equal, free, secret and direct suffrage, and the second the principle that
truly democratic elections can only be held if certain basic conditions of a
democratic state based on the rule of law, such as fundamental rights,
stability of electoral law and effective procedural guarantees, are met. The
text which follows – like the foregoing guidelines – is therefore in two parts,
the first covering the definition and practical implications of the principles
of the European electoral heritage and the second the conditions necessary for
their application.
I. The
underlying principles of Europe’s electoral heritage
Introduction: the principles and their legal basis
3.
If elections are to comply with the common principles
of the European constitutional heritage, which form the basis of any genuinely
democratic society, they must observe five fundamental rules: suffrage must
be universal, equal, free, secret and direct. Furthermore, elections
must be held periodically. All these principles together constitute the
European electoral heritage.
4.
Although all these principles are conventional in
nature, their implementation raises a number of questions that call for close scrutiny. We would
do well to identify the “hard core” of these principles, which must be scrupulously
respected by all European states.
5.
The hard core of the European electoral heritage
consists mainly of international rules.
The relevant universal rule is Article 25 (b) of the International
Covenant on Civil and Political Rights, which expressly provides for all of
these principles except direct suffrage, although the latter is implied.
The common European rule is Article 3 of the Additional Protocol to the
European Convention on Human Rights, which explicitly provides for the right to
periodical elections by free and secret suffrage;
the other principles have also been recognised in human rights case law.
The right to direct elections has also been admitted by the Strasbourg
Court, at least implicitly.
However, the constitutional principles common to the whole continent do not
figure only in the international texts: on the contrary, they are often
mentioned in more detail in the national constitutions.
Where the legislation and practice of different countries converge, the content
of the principles can be more accurately pinpointed.
1. Universal
suffrage
1.1. Rule and exceptions
6.
Universal suffrage covers both active (the right to
vote) and passive electoral rights (the right to stand for election). The right to vote and
stand for election may be subject to a number of conditions, all of which are
given below. The most usual are age and nationality.
a.
There must be a minimum age for the right to vote and the right to stand for
election; however, attainment of the age of majority, entailing not only rights
but also obligations of a civil nature, must at least confer the right to vote.
A higher age may be laid down for the right to stand for election but, save
where there are specific qualifying ages for certain offices (senator, head of state),
this should not be more than 25.
b.
Most countries’ legislations lay down a nationality requirement.
However, a tendency is emerging to grant local political rights to
long-standing foreign residents, in accordance with the Council of Europe Convention
on the Participation of Foreigners in Public Life at Local Level. It
is accordingly recommended that the right to vote in local elections be granted
after a certain period of residence. Furthermore, under the European
integration process European citizens have been granted the right to vote and
stand for election in municipal and European Parliament elections in their EU
member state of residence.
The nationality criterion can, moreover, sometimes cause problems if a state
withholds citizenship from persons who have been settled in its territory for
several generations, for instance on linguistic grounds. Furthermore, under the
European Convention on Nationality
persons holding dual nationality must have the same electoral rights as other
nationals.
c.
Thirdly, the right to vote and/or the right to stand for election may be
subject to residence requirements,
residence in this case meaning habitual residence. Where local and regional elections are
concerned, the residence requirement is not incompatible a priori with
the principle of universal suffrage, if the residence period specified does not
exceed a few months; any longer period is acceptable only to protect national
minorities.
Conversely, quite a few states grant their nationals living abroad the right to
vote, and even to be elected. This
practice can lead to abuse in some special cases, e.g. where nationality is
granted on an ethnic basis. Registration could take place where a voter has his
or her secondary residence, if he or she resides there regularly and it
appears, for example, on local tax payments; the voter must not then of course
be registered where he or she has his or her
principal residence.
The freedom of movement of citizens within the country, together with
their right to return at any time is one of the fundamental rights necessary
for truly democratic elections. If persons, in exceptional cases, have been
displaced against their will, they should, provisionally, have the possibility
of being considered as resident at their former place of residence.
d.
Lastly, provision may be made for clauses suspending political rights.
Such clauses must, however, comply with the usual conditions under which
fundamental rights may be restricted; in other words, they must:
-
be
provided for by law;
-
observe
the principle of proportionality;
-
be
based on mental incapacity or a criminal conviction for a serious offence.
Furthermore, the withdrawal of political rights may only be imposed by
express decision of a court of law. However, in the event of withdrawal on
grounds of mental incapacity, such express decision may concern the incapacity
and entail ipso jure deprivation of civic rights.
The conditions for depriving individuals of the right to stand for
election may be less strict than for disenfranchising them, as the holding of a
public office is at stake and it may be legitimate to debar persons whose activities in
such an office would violate a greater public interest.
1.2. Electoral registers
7.
The proper maintenance of electoral registers
is vital in guaranteeing universal suffrage. However, it is acceptable for
voters not to be included automatically on the registers, but only at their
request. In practice, electoral registers are often discovered to be
inaccurate, which leads to disputes. Lack of experience on the part of the
authorities, population shifts and the fact that few citizens bother to check
the electoral registers when they are presented for inspection make it
difficult to compile these registers. A number of conditions must be met if the
registers are to be reliable:
i. There
must be permanent electoral registers.
ii. There
must be regular updates, at least once a year, so that municipal (local)
authorities get into the habit of performing the various tasks involved in
updating at the same time every year. Where registration of voters is not
automatic, a fairly long time-period must be allowed for such registration.
iii. The
electoral registers must be published. The final update should be sent to a
higher authority under the supervision of the impartial body responsible for
the application of the electoral law.
iv. There
should be an administrative procedure – subject to judicial control – or a
judicial procedure enabling electors not on the register to have their names
included. In some countries, the
closing date for entry in the supplementary register may be, for example, 15
days before the election or election day itself. The latter case, whilst
admirably broad-minded, relies on decisions made by a court obliged to sit on
polling day, and is thus ill-suited to the organisational needs on which
democracies are based. In any event
polling stations should not be permitted to register voters on election day
itself.
v. Furthermore, inaccuracies in electoral registers
stem both from unjustified entries and from the failure to enter certain
electors. A procedure of the kind mentioned in the previous paragraph should
make it possible for electors to have erroneous entries corrected. The capacity
for requesting such corrections may be restricted to electors registered in the
same constituency or at the same polling station.
vi. A
supplementary register can enable persons who have changed address or reached
the statutory voting age since the final register was published to vote.
1.3. Submission of candidatures
8.
The obligation to collect a specific number of signatures
in order to be able to stand is theoretically compatible with the principle of
universal suffrage. In practice, only the most marginal parties seem to have
any difficulty gathering the requisite number of signatures, provided that the
rules on signatures are not used to bar candidates from standing for office. In
order to prevent such manipulation, it is preferable for the law to set a
maximum 1% signature requirement.
The signature verification procedure must follow clear rules, particularly with
regard to deadlines, and be applied to all the signatures rather than just a
sample;
however, once the verification shows beyond doubt that the requisite number of
signatures has been obtained, the remaining signatures need not be checked. In
all cases candidatures must be validated by the start of the election campaign,
because late validation places some parties and candidates at a disadvantage in
the campaign.
9.
There is another procedure where candidates or parties
must pay a deposit, which is only refunded if the candidate or party concerned
goes on to win more than a certain percentage of the vote. Such practices appear to
be more effective than collecting signatures.
However, the amount of the deposit and the number of votes needed for it
to be reimbursed should not be excessive.
2. Equal
suffrage
10. Equality in
electoral matters comprises a variety of aspects. Some concern equality of
suffrage, a value shared by the whole continent, while others go beyond this
concept and cannot be deemed to reflect any common standard. The principles to be respected in all cases
are numerical vote
equality, equality in terms of electoral strength and equality of chances. On the other hand, equality of outcome
achieved, for instance, by means of proportional representation of the parties
or the sexes, cannot be imposed.
2.1 Equal voting rights
11. Equality in
voting rights requires each voter to be normally entitled to one
vote, and to one vote only. Multiple voting, which is still a common
irregularity in the new democracies, is obviously prohibited – both if it means
a voter votes more than once in the same place and if it enables a voter to
vote simultaneously in several different places, such as his or her place of
current residence and place of former residence.
12. In some
electoral systems, the elector nonetheless has more than one vote. In, for
example, a system that allows split voting (voting for candidates chosen from
more than one list), the elector may have one vote per seat to be filled;
another possibility is when one vote is cast in a small constituency and
another in a larger constituency, as is often the case in systems combining
single-member constituencies and proportional representation at the national or
regional level.
In this case, equal voting rights mean that all electors should have the same
number of votes.
2.2 Equal voting power
13. Equality in
voting power, where the elections are not being held in one single
constituency, requires constituency boundaries to be drawn in such a way that
seats in the lower chambers representing the people are distributed
equally among the constituencies, in accordance with a specific apportionment
criterion, e.g. the number of residents in the constituency, the number of
resident nationals (including minors), the number of registered electors, or
possibly the number of people actually voting. An appropriate combination of
these criteria is conceivable. The same rules apply to regional and local
elections. When this principle is not complied with, we are confronted with
what is known as electoral geometry, in the form either of “active
electoral geometry”, namely a distribution of seats causing inequalities in
representation as soon as it is applied, or of “passive electoral geometry”,
arising from protracted retention of an unaltered territorial distribution of
seats and constituencies. Furthermore, under systems tending towards a
non-proportional result, particularly majority (or plurality) vote systems,
gerrymandering may occur, which consists in favouring one party by means of an
artificial delimitation of constituencies.
14. Constituency boundaries
may also be determined on the basis of geographical criteria and the administrative
or indeed historic boundary lines, which often depend on geography.
15. The maximum
admissible departure from the distribution criterion adopted depends on the
individual situation, although it should seldom exceed 10% and never 15%,
except in really exceptional circumstances (a demographically weak
administrative unit of the same importance as others with at least one
lower-chamber representative, or concentration of a specific national
minority).
16. In order to
avoid passive electoral geometry, seats should be redistributed at least every
ten years, preferably outside election periods, as this will limit the risks of
political manipulation.
17. In
multi-member constituencies electoral geometry can easily be avoided by
regularly allocating seats to the constituencies in accordance with the
distribution criterion adopted.
Constituencies ought then to correspond to administrative units, and
redistribution is undesirable. Where a uninominal method of voting is used,
constituency boundaries need to be redrawn at each redistribution of seats. The
political ramifications of (re)drawing electoral boundaries are very
considerable, and it is therefore essential that the process should be
non-partisan and should not disadvantage national minorities. The long-standing
democracies have widely differing approaches to this problem, and operate along
very different lines. The new democracies should adopt simple criteria and
easy-to-implement procedures. The best solution would be to submit the problem
in the first instance to a commission comprising a majority of independent
members and, preferably, a geographer, a sociologist, a balanced representation
of the parties and, where appropriate, representatives of national
minorities. The parliament would then
make a decision on the basis of the commission’s proposals, with the
possibility of a single appeal.
2.3 Equality of opportunity
18. Equality of
opportunity should be ensured between parties and candidates and
should prompt the state to be impartial towards them and to apply the same law
uniformly to all. In particular, the neutrality
requirement applies to the electoral campaign and coverage by the
media, especially the publicly owned media, as well as to public funding
of parties and campaigns. This means that there are two possible interpretations
of equality: either “strict” equality or “proportional” equality.
“Strict” equality means that the political parties are treated without regard
to their present strength in parliament or among the electorate. It must apply to the use of public facilities
for electioneering purposes (for example bill posting, postal services and
similar, public demonstrations, public meeting rooms). “Proportional” equality
implies that the treatment of political parties is in proportion to the number
of votes. Equality of opportunity (strict and/or proportional) applies in
particular to radio and television airtime, public funds and other forms of
backing. Certain forms of backing may on the one hand be submitted to strict
equality and on the other hand to proportional equality.
19. The basic
idea is that the main political forces should be able to voice their opinions
in the main organs of the country’s media and that all the political forces
should be allowed to hold meetings, including on public thoroughfares,
distribute literature and exercise their right to post bills. All of these
rights must be clearly regulated, with due respect for freedom of expression,
and any failure to observe them, either by the authorities or by the campaign participants,
should be subject to appropriate sanctions. Quick rights of appeal must be
available in order to remedy the situation before the elections. But the fact
is that media failure to provide impartial information about the election campaign and
candidates is one of the most frequent shortcomings arising during elections.
The most important thing is to draw up a list of the media organisations in
each country and to make sure that the candidates or parties are accorded
sufficiently balanced amounts of airtime or advertising space, including on
state radio and television stations.
20. In conformity with freedom of expression, legal
provision should be made to ensure that there is a minimum access to privately owned audiovisual media,
with regard to the election campaign and to advertising, for all participants
in elections.
21. The question
of funding, and in particular of the need for it to be transparent, will be
considered later.
Spending by political parties, particularly on advertising, may likewise be
limited in order to guarantee equality of opportunity.
2.4 Equality and national
minorities
22. In
accordance with the principles of international law, the electoral law must
guarantee equality for persons belonging to national minorities, which includes
prohibiting any discrimination against them.
In particular, the national minorities must be allowed to set up political
parties.
Constituency delimitations and quorum regulations must not be such as to form
an obstacle to the presence of persons belonging to minorities in the elected
body.
23. Certain
measures taken to ensure minimum representation for minorities either by
reserving seats for them
or by providing for exceptions to the normal rules on seat distribution, eg by
waiving the quorum for the national minorities’ parties
do not infringe the principle of equality. It may also be foreseen that people
belonging to national minorities have the right to vote for both general and
national minority lists. However, neither candidates nor electors must be required
to indicate their affiliation with any national minority.,
2.5 Equality
and parity of the sexes
24. If there is
a specific constitutional basis,
rules could be adopted guaranteeing some degree of balance between the two
sexes in elected bodies, or even parity. In the absence of such a
constitutional basis, such provisions could be considered contrary to the
principle of equality and freedom of association.
25. Moreover,
the scope of these rules depends on the electoral system. In a fixed party list
system, parity is imposed if the number of men and women who are eligible is
the same. However, if preferential voting or cross-voting is possible, voters
will not necessarily choose candidates from both sexes, and this may result in
an unbalanced composition of the elected body, chosen by voters.
3. Free suffrage
26. Free
suffrage comprises two different aspects: free formation of the elector’s
opinion, and free expression of this opinion, i.e. freedom of voting procedure
and accurate assessment of the result.
3.1 Freedom of voters to
form an opinion
a. Freedom of voters to form an opinion partly overlaps with
equality of opportunity. It requires
the state – and public authorities generally – to honour their duty of
even-handedness, particularly where the use of the mass media, billposting, the
right to demonstrate on public thoroughfares and the funding of parties and
candidates are concerned.
b. Public authorities also have certain positive obligations. They must
submit lawfully presented candidatures to the citizens’ votes. The presentation
of specific candidatures may be prohibited only in exceptional circumstances,
where necessitated by a greater public interest. Public authorities must also give the
electorate access to lists and candidates standing for election by means, for
instance, of appropriate billposting. The information in question must also be
available in the languages of national minorities, at least where they make up
a certain percentage of the population.
Voters’ freedom to form an opinion may also be infringed by individuals,
for example when they attempt to buy votes, a practice which the state is
obliged to prevent or punish effectively.
c. In order to ensure that the rules relating to voters’ freedom to form
an opinion are effective, any violation of the foregoing rules must be
punished.
3.2. Freedom of voters to
express their wishes and combating electoral fraud
27. Freedom of
voters to express their wishes primarily requires strict observance of
the voting procedure. In practice, electors should be able to cast their
votes for registered lists or candidates, which means that they must be
supplied with ballot papers bearing their names and that they must be able to
deposit the ballot papers in a ballot box. The state must make available the
necessary premises for electoral operations. Electors must be protected from
threats or constraints liable to prevent them from casting their votes or from
casting them as they wish, whether such threats come from the authorities or
from individuals; the state is obliged to prevent and penalise such practices.
28. Furthermore,
the voter has the right to an accurate assessment of the result of the
ballot; the state should punish any
election fraud.
3.2.2. Voting procedures
29. Voting procedures
play a vital role in the overall electoral process because it is during voting
that election fraud is most likely to occur.
30. In some
countries the implementation of democratic practices requires a radical change
of attitudes, which must be actively promoted by the authorities. In this
respect some measures have to be taken to control the habits and reflexes which
have a negative impact on the elections.
Most of these irregularities, such as “family voting”
occur during the voting procedure.-
31. All these
observations lead us to the following conclusion: the voting procedure must
be kept simple. Compliance is therefore
recommended with the criteria set out in the ensuing paragraphs.
32. If the
polling station officials represent a proper balance of political opinion,
fraud will be difficult, and the fairness of the ballot should be judged by two
main criteria alone: the number of electors who have cast votes compared with
the number of ballot papers in the ballot box. The first measure can be determined
by the number of signatures in the electoral register. Human nature being what
it is (and quite apart from any intention to defraud), it is difficult to
achieve total congruity between the two measures, and any further controls such
as numbering the stubs of ballot papers or comparing the total number of ballot
papers found in the ballot box plus those cancelled and unused with the number
of ballot papers issued to the polling station may give some indication, but
one should be under no illusion that the results of these various measures will
coincide perfectly. The risk in multiplying the measures used is rather that
the differences in the totals, and in the end the real irregularities, will not
be taken seriously. It is better to have strict control over two measures than
slack – and hence ineffective – control over a larger number of variables.
33. Any unused
ballot papers should remain at the polling station and should not be deposited
or stored in different premises. As soon as the station opens, the ballot
papers awaiting use must be in full view on the table of the senior station
official for instance. There should be no others stored in cupboards or other
places.
34. The signing
and stamping of ballot papers should not take place at the point when the paper
is presented to the voter, because the signatory or the person affixing the
stamp might mark the paper so that the voter could be identified when it came
to counting the votes, which would violate the secrecy of the ballot.
35. The voter
should collect his or her ballot paper and no one else should touch it from
that point on.
36. It is
important that the polling station officials include multi-party
representatives and that observers assigned by the candidates be present.
37. Voters
should always have the possibility of voting in a polling station; other means
of voting are, however, acceptable on certain conditions, as indicated below.
3.2.2.1. Postal voting or proxy voting in certain
circumstances
38. Postal
voting and proxy voting are permitted in countries throughout the western
world, but the pattern varies considerably. Postal voting, for instance, may be
widespread in one country and prohibited in another owing to the danger of
fraud. It should be allowed only if the postal service is secure – in other words,
safe from intentional interference – and reliable, in the sense that it
functions properly. Proxy voting is permissible only if subject to very strict
rules, again in order to prevent fraud; the number of proxies held by any one
elector must be limited.
39. Neither of
these practices should be widely encouraged if problems with the postal service
are added to other difficulties inherent in this kind of voting, including the
heightened risk of “family voting”. Subject to certain precautions, however,
postal voting can be used to enable hospital patients, persons in custody,
persons with restricted mobility and electors resident abroad to vote, in so
far as there is no risk of fraud or intimidation. This would dispense with the
need for a mobile ballot box, which often causes problems and risks of fraud.
Postal voting would take place under a special procedure a few days before the
election.
40. The use of mobile
ballot boxes is undesirable because of the attendant serious risk of fraud.
Should they nonetheless be used, strict conditions should be imposed to prevent
fraud, including the attendance of several members of the polling station
election commission representing different political groupings.
3.2.2.2. Military voting
41. Where
servicemen cannot return home on polling day, they should preferably be
registered at polling stations near their barracks. Details of the servicemen
concerned are sent by the local command to the municipal authorities who then
enter the names in the electoral list. The one exception to this rule is when
the barracks are too far from the nearest polling station. Within the military
units, special commissions should be set up to supervise the pre-election
period, in order to prevent the risk of superior officers’ imposing or ordering
certain political choices.
3.2.2.3. Mechanical
and electronic voting methods
42. Several
countries are already using, or are preparing to introduce mechanical and
electronic voting methods. The advantage of these methods becomes apparent when
a number of elections are taking place at the same time, even though certain
precautions are needed to minimise the risk of fraud, for example by enabling
the voter to check his or her vote immediately after casting it. Clearly, with this kind of voting, it is
important to ensure that ballot papers are designed in such a way as to avoid
confusion. In order to facilitate verification and a recount of votes in the
event of an appeal, it may also be provided that a machine could print votes
onto ballot papers; these would be placed in a sealed container where they
cannot be viewed. Whatever means used should ensure the confidentiality of
voting.
43. Electronic
voting methods must be secure and reliable. They are secure if the system can
withstand deliberate attack; they are reliable if they can function on their
own, irrespective of any shortcomings in the hardware or software. Furthermore,
the elector must be able to obtain confirmation of his or her vote and, if
necessary, correct it without the secrecy of the ballot being in any way
violated.
44. Furthermore,
the system’s transparency must be guaranteed in the sense that it must be
possible to check that it is functioning properly.
3.2.2.4. Counting
45. The votes
should preferably be counted at the polling stations themselves, rather than in
special centres. The polling station staff are perfectly capable of performing
this task, and this arrangement obviates the need to transport the ballot boxes
and accompanying documents, thus reducing the risk of substitution.
46. The vote
counting should be conducted in a transparent manner. It is admissible that
voters registered in the polling station may attend; the presence of national or international
observers should be authorised. These persons must be allowed to be present in
all circumstances. There must be enough copies of the record of the proceedings
to distribute to ensure that all the aforementioned persons receive one; one
copy must be immediately posted on the notice-board, another kept at the
polling station and a third sent to the commission or competent higher
authority.
47. The relevant
regulations should stipulate certain practical precautions as regards
equipment. For example, the record of the proceedings should be completed in
ballpoint pen rather than pencil, as text written in pencil can be erased.
48. In practice,
it appears that the time needed to count the votes depends on the efficiency of
the presiding officer of the polling station. These times can vary markedly,
which is why a simple tried and tested procedure should be set out in the
legislation or permanent regulations which appear in the training manual for
polling station officials.
49. It is best
to avoid treating too many ballot papers as invalid or spoiled. In case of
doubt, an attempt should be made to ascertain the voter’s intention.
3.2.2.5. Transferring the results
50. There are
two kinds of results: provisional results and final results (before all
opportunities for appeal have been exhausted). The media, and indeed the entire
nation, are always impatient to hear the initial provisional results. The speed
with which these results are relayed will depend on the country’s
communications system. The polling station’s results can be conveyed to the
electoral district (for instance) by the presiding officer of the polling station,
accompanied by two other members of the polling station staff representing
opposing parties, in some cases under the supervision of the security forces,
who will carry the records of the proceedings, the ballot box, etc.
51. However much
care has been taken at the voting and vote-counting stages, transmitting the
results is a vital operation whose importance is often overlooked; it must
therefore be effected in an open manner. Transmission from the electoral
district to the regional authorities and the Central Electoral Commission – or
other competent higher authorities – can be done by fax. In that case, the
records will be scanned and the results can be displayed as and when they come
in. Television can be used to broadcast these results but once again, too much
transparency can be a dangerous thing if the public is not ready for this kind
of piecemeal reporting. The fact is that the initial results usually come in
from the towns and cities, which do not normally or necessarily vote in the
same way as rural areas. It is important therefore to make it clear to the
public that the final result may be quite different from, or even completely
opposite to, the provisional one, without there having been any question of
foul play.
4. Secret suffrage
52. Secrecy of
the ballot is one aspect of voter freedom, its purpose being to shield voters
from pressures they might face if others learned how they had voted. Secrecy
must apply to the entire procedure – and particularly the casting and counting
of votes. Voters are entitled to it, but must also respect it themselves, and
non-compliance must be punished by disqualifying any ballot paper whose content
has been disclosed.
53. Voting must
be individual. Family voting, whereby one member of a given family can
supervise the votes cast by the other members, infringes the secrecy of the
ballot; it is a common violation of the electoral law. All other forms of
control by one voter over the vote of another must also be prohibited. Proxy
voting, which is subject to strict conditions, is a separate issue.
54. Moreover,
since abstention may indicate a political choice, lists of persons voting
should not be published.
55. Violation of
the secrecy of the ballot must be punished, just like violations of other
aspects of voter freedom.
5. Direct suffrage
56. Direct
election of one of the chambers of the national parliament by the people is one
aspect of Europe’s shared constitutional heritage.
Subject to such special rules as are applicable to the second chamber, where
there is one, other legislative bodies, like the Parliaments of Federate
States,
should be directly elected, in accordance with Article 3 of the Additional
Protocol to the European Convention on Human Rights. Nor can local
self-government, which is a vital component of democracy, be conceived of
without local elected bodies.
Here, local assemblies include all infra-national deliberative bodies.
On the other hand, even though the President of the Republic is often directly
elected, this is a matter for the Constitution of the individual state.
6. Frequency of
elections
57. Both the
International Covenant on Civil and Political Rights
and the Additional Protocol to the European Convention on Human Rights
provide that elections must be held periodically. General elections are usually
held at four- or five-yearly intervals, while longer periods are possible for
presidential elections, although the maximum should be seven years.
II. Conditions for
implementing the principles
58. The
underlying principles of European electoral systems can only be guaranteed if
certain general conditions are fulfilled.
·
The first, general, condition is respect for
fundamental human rights, and particularly freedom of expression, assembly
and association, without which there can be no true democracy;
·
Second, electoral law must enjoy a certain stability,
protecting it against party political manipulation;
·
Last and above all, a number of procedural guarantees
must be provided, especially as regards the organisation of polling.
59. Furthermore,
elections are held not in a vacuum but within the context of a specific
electoral system and a given party system. This second section will conclude
with a number of comments on this aspect, particularly on the relationship
between electoral and party systems.
1. Respect for fundamental rights
60. The holding
of democratic elections and hence the very existence of democracy are
impossible without respect for human rights, particularly the freedom of
expression and of the press and the freedom of assembly and association for political
purposes, including the creation of political parties. Respect for these
freedoms is vital particularly during election campaigns. Restrictions on
these fundamental rights must comply with the European Convention on Human
Rights and, more generally, with the requirement that they have a basis in law,
are in the general interest and respect the principle of proportionality.
61. The fact is that many countries have legal
limitations on free speech, which, if restrictively interpreted, may
just be acceptable – but may generate abuses in countries with no liberal,
democratic tradition. In theory, they are intended to prevent “abuses” of free
speech by ensuring, for example, that candidates and public authorities are not
vilified, and even protecting the constitutional system. In practice, however,
they may lead to the censoring of any statements which are critical of
government or call for constitutional change, although this is the very essence
of democratic debate. For example, European standards are violated by an
electoral law which prohibits insulting or defamatory references to officials
or other candidates in campaign documents, makes it an offence to circulate
libellous information on candidates, and makes candidates themselves liable for
certain offences committed by their supporters. The insistence that materials
intended for use in election campaigns must be submitted to electoral
commissions, indicating the organisation which ordered and produced them, the
number of copies and the date of publication, constitutes an unacceptable form
of censorship, particularly if electoral commissions are required to take
action against illegal or inaccurate publications. This is even more true if
the rules prohibiting improper use of the media during electoral campaigns are
rather vague.
62. Another very
important fundamental right in a democracy is freedom of movement within the
country, together with the right for nationals to return to their country at
any time.
2. Regulatory levels and stability of
electoral law
63. Stability of the law is crucial to credibility
of the electoral process, which is itself vital to consolidating democracy.
Rules which change frequently – and especially rules which are complicated –
may confuse voters. Above all, voters may conclude, rightly or wrongly, that
electoral law is simply a tool in the hands of the powerful, and that their own
votes have little weight in deciding the results of elections.
64. In practice, however, it is not so much
stability of the basic principles which needs protecting (they are not likely
to be seriously challenged) as stability of some of the more specific rules of
electoral law, especially those covering the electoral system per se,
the composition of electoral commissions and the drawing of constituency boundaries.
These
three elements are often, rightly or wrongly, regarded as decisive factors in
the election results, and care must be taken to avoid not only manipulation to
the advantage of the party in power, but even the mere semblance of
manipulation.
65. It is not so much changing voting systems which
is a bad thing – they can always be changed for the better – as changing them
frequently or just before (within one year of) elections. Even when no
manipulation is intended, changes will seem to be dictated by immediate party
political interests.
66. One way of
avoiding manipulation is to define in the Constitution or in a text higher in
status than ordinary law the elements that are most exposed (the electoral
system itself, the membership of electoral commissions, constituencies or rules
on drawing constituency boundaries). Another, more flexible, solution would be
to stipulate in the Constitution that, if the electoral law is amended, the old
system will apply to the next election – at least if it takes place within the
coming year – and the new one will take effect after that.
67. For the
rest, the electoral law should normally have the rank of statute law. Rules on
implementation, in particular those on technical questions and matters of
detail, can nevertheless be in the form of regulations.
3. Procedural safeguards
3.1. Organisation of elections by an
impartial body
68. Only
transparency, impartiality and independence from politically motivated
manipulation will ensure proper administration of the election process, from
the pre-election period to the end of the processing of results.
69. In states where the administrative authorities
have a long-standing tradition of independence from the political authorities,
the civil service applies electoral law without being subjected to political
pressures. It is therefore both normal and acceptable for elections to be
organised by administrative authorities, and supervised by the Ministry of the
Interior.
70. However, in states with little experience of
organising pluralist elections, there is too great a risk of government’s
pushing the administrative authorities to do what it wants. This applies both to central and local
government - even when the latter is controlled by the national opposition.
71. This is why independent, impartial electoral
commissions must be set up from the national level to polling station level
to ensure that elections are properly conducted, or at least remove serious
suspicions of irregularity.
72. According to
the reports of the Bureau of the Parliamentary Assembly of the Council of
Europe on election observations, the following shortcomings concerning the
electoral commissions have been noted in a number of member States: lack of
transparency in the activity of the central electoral commission; variations in
the interpretation of counting procedure; politically polarised election
administration; controversies in appointing members of the Central Electoral
Commission; commission members nominated by a state institution; the dominant
position of the ruling party in the election administration.
73. Any central
electoral commission must be permanent, as an administrative
institution responsible for liaising with local authorities and the other
lower-level commissions, e.g. as regards compiling and updating the electoral
lists.
74. The
composition of a central electoral commission can give rise to debate and
become the key political issue in the drafting of an electoral law. Compliance
with the following guidelines should facilitate maximum impartiality and
competence on the part of the commission.
75. As a general
rule, the commission should consist of:
- a judge or law officer: where a
judicial body is responsible for administering the elections, its independence
must be ensured through transparent proceedings. Judicial appointees should not
come under the authority of those standing for office;
- representatives
of parties already represented in parliament or which have won more than a
certain percentage of the vote. Political parties should be represented equally
in the central electoral commission; “equally” may be interpreted strictly or
proportionally, that is to say, taking or not taking account of the parties’
relative electoral strengths.
Moreover, party delegates should be qualified in electoral matters and should be
prohibited from campaigning.
76. In addition,
the electoral commission may include:
- representatives of national
minorities; their presence is desirable if the national minority is of a
certain importance in the territory concerned;
- a representative of the
Ministry of the Interior. However, for reasons connected with the history of
the country concerned, it may not always be appropriate to have a
representative of the Ministry of the Interior in the commission. During its
election observation missions the Parliamentary Assembly has expressed concern
on several occasions about transfers of responsibilities from a fully-fledged
multi-party electoral commission to an institution subordinate to the
executive. Nevertheless, co-operation between the central electoral commission
and the Ministry of the Interior is possible if only for practical reasons,
e.g. transporting and storing ballot papers and other equipment. For the rest,
the executive power should not be able to influence the membership of the
electoral commissions.
77. Broadly
speaking, bodies that appoint members to electoral commissions should not be
free to recall them, as it casts doubt on their independence. Discretionary
recall is unacceptable, but recall for disciplinary reasons is permissible - provided
that the grounds for this are clearly and restrictively specified in law (vague
references to “acts discrediting the commission”, for example, are not
sufficient).
78. In the
long-standing democracies where there are no electoral commissions but where
another impartial body is competent in electoral matters, political parties
must be able to observe the work of that body.
79. The
composition of the central electoral commission is certainly important, but no
more so than its mode of operation. The commission’s rules of procedure
must be clear, because commission chairpersons have a tendency to let members
speak, which the latter are quick to exploit. The rules of procedure should
provide for an agenda and a limited amount of speaking time for each member – e.g.
a quarter of an hour; otherwise endless discussions are liable to obscure the
main business of the day.
80. There are
many ways of making decisions. It would make sense for decisions to be taken by
a qualified (e.g. 2/3) majority, so as
to encourage debate between the majority and at least one minority party.
Reaching decisions by consensus is preferable.
81. The meetings
of the central electoral commission should be open to everyone, including the
media (this is another reason why speaking time should be limited). Any
computer rooms, telephone links, faxes, scanners, etc. should be open to inspection.
82. Other
electoral commissions operating at regional or constituency level should have a
similar composition to that of the central electoral commission. Constituency
commissions play an important role in uninominal voting systems because they
determine the winner in general elections. Regional commissions also play a
major role in relaying the results to the central electoral commission.
83. Appropriate
staff with specialised skills
are required to organise elections. Members of central electoral commissions
should be legal experts, political scientists, mathematicians or other people
with a good understanding of electoral issues.
84. Members of
electoral commissions have to receive standardised training at all levels of
the election administration. Such training should also be made available to the
members of commissions appointed by political parties. There have been several
cases of commissions lacking qualified and trained election staff.
85. The
electoral law should contain an article requiring the authorities (at every
level) to meet the demands and needs of the electoral commission. Various
ministries and other public administrative bodies, mayors and town hall staff
may be directed to support the election administration by carrying out the
administrative and logistical operations of preparing for and conducting the
elections. They may have responsibility for preparing and distributing the
electoral registers, ballot papers, ballot boxes, official stamps and other
required material, as well as determining the arrangements for storage,
distribution and security.
3.2. Observation of elections
86. Observation
of elections plays an important role as it provides evidence of whether the
electoral process has been regular or not.
87. There are
three different types of observer: partisan national observers, non-partisan
national observers and international (non-partisan) observers. In practice the
distinction between the first two categories is not always obvious. This is why
it is best to make the observation procedure as broad as possible at both the
national and the international level.
88. Observation
is not confined to the actual polling day but includes ascertaining whether any
irregularities have occurred in advance of the elections (e.g. by improper
maintenance of electoral lists, obstacles to the registration of candidates,
restrictions on freedom of expression, and violations of rules on access to the
media or on public funding of electoral campaigns), during the elections (e.g.
through pressure exerted on electors, multiple voting, violation of voting
secrecy, etc.) or after polling (especially during the vote counting and
announcement of the results). Observation should focus particularly on the
authorities’ regard for their duty of neutrality.
89. International
observers play a primordial role in states which have no established tradition
of impartial verification of the lawfulness of elections.
90. Generally,
international as well as national observers must be in a position to
interview anyone present, take notes and report to their organisation, but they
should refrain from making comments.
91. The law must
be very clear as to what sites observers are not entitled to visit, so that
their activities are not excessively hampered. For example, an act authorising
observers to visit only sites where the election (or voting) takes place could
be construed by certain polling stations in an unduly narrow manner.
3.3. An effective system of appeal
92. If the
electoral law provisions are to be more than just words on a page, failure to
comply with the electoral law must be open to challenge before an appeal body.
This applies in particular to the election results: individual citizens may
challenge them on the grounds of irregularities in the voting procedures. It
also applies to decisions taken before the elections, especially in connection
with the right to vote, electoral registers and standing for election, the
validity of candidatures, compliance with the rules governing the electoral
campaign and access to the media or to party funding.
93. There are
two possible solutions:
- appeals may
be heard by the ordinary courts, a special court or the constitutional court;
- appeals may
be heard by an electoral commission. There is much to be said for this latter
system in that the commissions are highly specialised whereas the courts tend
to be less experience with regard to electoral issues. As a precautionary
measure, however, it is desirable that there should be some form of judicial
supervision in place, making the higher commission the first appeal level and
the competent court the second.
94. Appeal to
parliament, as the judge of its own election, is sometimes provided for but
could result in political decisions. It is acceptable as a first instance in
places where it is long established, but a judicial appeal should then be
possible.
95. Appeal proceedings should be as brief as
possible, in any case concerning decisions to be taken before the election. On
this point, two pitfalls must be avoided: first, that appeal proceedings retard
the electoral process, and second, that, due to their lack of suspensive
effect, decisions on appeals which could have been taken before, are taken
after the elections. In addition,
decisions on the results of elections must also not take too long, especially
where the political climate is tense. This means both that the time limits for
appeals must be very short and that the appeal body must make its ruling as
quickly as possible. Time limits must, however, be long enough to make an
appeal possible, to guarantee the exercise of rights of defence and a reflected
decision. A time limit of three to five days at first instance (both for
lodging appeals and making rulings) seems reasonable for decisions to be taken
before the elections. It is, however,
permissible to grant a little more time to Supreme and Constitutional Courts
for their rulings.
96. The procedure must also be simple, and
providing voters with special appeal forms helps to make it so.
It is necessary to eliminate formalism, and so avoid decisions of
inadmissibility, especially in politically sensitive cases.
97. It is also vital that the appeal procedure, and
especially the powers and responsibilities of the various bodies involved in
it, should be clearly regulated by law, so as to avoid any positive or negative
conflicts of jurisdiction. Neither the appellants nor the authorities should be
able to choose the appeal body. The risk that successive bodies will refuse to give
a decision is seriously increased where it is theoretically possible to appeal
to either the courts or an electoral commission, or where the powers of
different courts – e.g. the ordinary courts and the constitutional court – are
not clearly differentiated.
Example:
Central
Election Commission → Supreme Court
↑
Regional commission → Appeal
Court
↑
Constituency Election
commission
↑
Polling station (on
election day)
98. Disputes
relating to the electoral registers, which are the responsibility, for example,
of the local administration operating under the supervision of or in
co-operation with the electoral commissions, can be dealt with by courts of
first instance.
99. Standing in such appeals must be granted as
widely as possible. It must be open to every elector in the constituency and to
every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed
for appeals by voters on the results of elections.
100.
The appeal
procedure should be of a judicial nature, in the sense that the right of the
appellants to proceedings in which both parties are heard should be
safeguarded.
101.
The powers
of appeal bodies are important too. They should have authority to annul
elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is
the general principle, but it should be open to adjustment, i.e. annulment
should not necessarily affect the whole country or constituency – indeed, it
should be possible to annul the results of just one polling station. This makes
it possible to avoid the two extremes – annulling an entire election, although
irregularities affect a small area only, and refusing to annul, because the
area affected is too small. In zones where the results have been annulled, the
elections must be repeated.
102.
Where
higher-level commissions are appeal bodies, they should be able to rectify or
annul ex officio the decisions of lower electoral commissions.
103.
Some points deserve to be developed.
3.4. Organisation and operation of polling
stations
104.
The quality of the voting and vote-counting systems
and proper compliance with the electoral procedures depend on the mode of
organisation and operation of the polling stations. The reports of the Bureau of the Assembly on
the observation of elections in different countries have revealed a series of
logistical irregularities. For example, significant differences between polling
stations across different regions of the same State were noted.
105.
Assembly observation missions have also noticed
several cases of technical irregularities such as wrongly printed or stamped
ballot boxes, overly complex ballot papers, unsealed ballot boxes, inadequate
ballot papers or boxes, misuse of ballot boxes, insufficient means of identification
of voters and absence of local observers.
106.
All these irregularities and shortcomings, in addition
to political party electioneering inside the polling station and police
harassment, can seriously vitiate the voting process, or indeed undermine its
integrity and validity.
3.5. Funding
107.
Regulating the funding of political parties and
electoral campaigns is a further important factor in the regularity of the
electoral process.
108.
First of all, funding must be transparent; such
transparency is essential whatever the level of political and economic
development of the country concerned.
109.
Transparency
operates at two levels. The first concerns campaign funds, the details of which
must be set out in a special set of carefully maintained accounts. In the event
of significant deviations from the norm or if the statutory expenditure
ceilings are exceeded, the election must be annulled. The second level involves
monitoring the financial status of elected representatives before and after
their term in office. A commission in charge of financial transparency takes
formal note of the elected representatives’ statements as to their
finances. The latter are confidential,
but the records can, if necessary, be forwarded to the public prosecutor’s
office.
110.
In unitary states, any expenses incurred by local
authorities in connection with the running of a national election, the payment
of election commission members, the printing of ballot papers, etc, should
normally be borne by the central state.
111.
It should be remembered that in the field of public
funding of parties or campaigns the principle of equality of opportunity
applies (“strict” or “proportional” equality).
All parties represented in parliament must in all cases qualify for public
funding. However, in order to ensure equality of opportunity for all the
different political forces, public funding might also be extended to political
formations that represent a large section of the electorate and put up
candidates for election. The funding of political parties from public funds
must be accompanied by supervision of the parties’ accounts by specific public
bodies (e.g. the Auditor General’s Department). States should encourage a
policy of financial openness on the part of political parties receiving public
funding.
3.6. Security
112.
Every electoral law must provide for intervention by
the security forces in the event of trouble. In such an event, the presiding
officer of the polling station (or his or her representative) must have sole
authority to call in the police. It is important to avoid extending this right
to all members of the polling station commission, as what is needed in such
circumstances is an on-the-spot decision that is not open to discussion.
113.
In some states, having a police presence at polling
stations is a national tradition, which, according to observers, does not
necessarily trigger unrest or have an intimidating effect on voters. One should
note that a police presence at polling stations is still provided for in the
electoral laws of certain western states, even though this practice has changed
over time.
Conclusion
114.
Compliance
with the five underlying principles of the European electoral heritage
(universal, equal, free, secret and direct suffrage) is essential for
democracy. It enables democracy to be expressed in different ways but within
certain limits. These limits stem primarily from the interpretation of the said
principles; the present text lays out the minimum rules to be followed in order
to ensure compliance. Second, it is insufficient for the electoral law (in the
narrow sense) to comprise rules that are in keeping with the European electoral
principles: the latter must be placed in their context, and the credibility of
the electoral process must be guaranteed. First, fundamental rights must be respected;
and second, the
stability of the rules must be
such as to exclude any suspicion of manipulation. Lastly, the procedural
framework must allow the rules laid down to be implemented effectively.
