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Strasbourg/Warsaw,
20 December 2002
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CDL-AD (2002) 35
Or. Engl.
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Opinion no. 214/2002
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JOINT
ASSESSMENT OF
THE
REVISED DRAFT ELECTION CODE
OF
THE REPUBLIC OF AZERBAIJAN
OF 28 NOVEMBER 2002
BY
THE OFFICE FOR DEMOCRATIC INSTITUTIONS
AND HUMAN RIGHTS (ODIHR) OF THE OSCE
AND
THE EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION, COUNCIL OF EUROPE)
Endorsed by the Venice
Commission
at its 53rd
plenary session
(Venice, 13-14 December
2002)
on
the basis of comments by
Mr Georg NOLTE
(Venice Commission, Substitute member, Germany)
Mr Eugenio POLIZZI (Venice
Commission, expert, Italy)
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).
In conformity with
its mandate, the OSCE Office for Democratic Institutions and Human Rights
(ODIHR) has been engaged in Azerbaijan since 1998 through the implementation of
technical assistance projects mainly aiming at improving the election
legislation in co-operation with the authorities and civil society of
Azerbaijan.
Following the 2000
parliamentary elections, the Venice Commission and the OSCE/ODIHR started to
discuss 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 a preliminary
assessment on the working draft Election Code, in September 2002 (CDL (2002) 131). This preliminary assessment (CDL (2002) 131) has been endorsed by the
Venice Commission at its 52nd plenary session (18-19 October 2002).
Following a visit
to Azerbaijan where discussions took place on the draft code, the ODIHR and the
Venice Commission received a revised draft election code on 28 November 2002
(CDL (2002) 147). In advance of the first round table on the draft Code, both
institutions offer this second preliminary assessment.
The OSCE/ODIHR and
the Venice Commission wish to thank the International Foundation for Election
Systems (IFES) sharing the English translation of the draft election code
without which this assessment would not have been possible.
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 the Republic of Azerbaijan;
-
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 Code of good practice in electoral matters, adopted by
the Venice Commission at its 51st and 52nd sessions
(Venice, 5-6 July and 18-19 October 2002) (CDL-AD (2002) 23);
-
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 working Draft Election code (Unofficial translation of
IFES 2002, June 2002);
-
the comments of Mr. Georg Nolte (substitute member for the
Venice Commission, Germany), including documentCDL(2002)136;
-
the comments of Mr. Eugenio Polizzi (Expert for the Venice
Commission, Italy), including documentCDL(2002)135;
- the comments of
Mr. Rumen Maleev, OSCE/ODIHR election Expert, Bulgaria;
- the Preliminary
Assessment of the draft Election Code of the Republic of Azerbaijan, 27
September 2002, based on comments by Mr Georg Nolte (Substitute member of the
Venice Commission, Germany), Mr Eugenio Polizzi (Venice Commission, expert,
Italy) and Mr Rumen Maleev (OSCE/ODIHR, election expert) (CDL (2002) 131);
- the revised draft
Election Code of the Republic of Azerbaijan sent by the authorities on 28
November 2002 (CDL (2002) 147).
The Venice Commission and ODIHR were informed that the
revised draft Election Code received on 28 November 2002 has been further
amended. However, the comments offered in this report refer to the version
officially sent to ODIHR and the Venice Commission at the date here before.
General comments
Introduction
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 Section is
apparently divided into four sections: but there is no Section Three. The
adoption of a single Code governing national elections and referendums is welcomed.
This codification should ensure greater consistency in the rules governing
referendums and all forms of elections.
2.
A great number of
recommendations previously made by the Venice Commission and the OSCE/ODIHR is
now reflected in the revised draft Code.
3.
Efforts have been deployed to
simplify the Code and to shorten it by removing repetitions. However, the Code
remains voluminous, repetitious and complicated. Several provisions contain
only minimal differences between the different types of elections. For
instance, this is the case for Articles
127.1-6, 155.1-6, 189.1-6 and Articles 224.1-6; Articles 160.1-4, Articles 193.1-4 and 229.1-4; Articles 162.1-6,
195.1-6 and 231.1-6; Articles 164, 197 and 233. These articles should be
harmonised and moved to the General Section of the Code. 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 the repetitions in the sections dealing
with different forms of elections should be avoided.
4.
The length and level of
complexity of the Code create the risk for 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.
Sanctions for violations of norms
must be proportionate. Several provisions establish too severe sanctions. For
instance in Article 88.7, a cancellation of registration is disproportionate
and a financial sanction or a court proceeding would be a more proper sanction.
In the end, the electorate should be the last judge on whether a candidate
deserves to be elected. See also Article 114.1.
Election
commissions
6.
The existing rules on the
formation of electoral commissions have been reintroduced in the Code as well
as the principle according to which the parliamentary majority and minority
agree on two candidates nominated by the “independent deputies”. These rules
should also apply to Precinct election commissions. What constitutes the
parliamentary majority and minority remains to be clarified. The representation
of the judiciary in election commissions is a welcome innovation as well as the
fact that the Chairman of the Central Election Commission will be elected
amongst its members. It is, however, recommended that the Chairman, Deputy
Chairman and the Secretary to be elected by secret vote (Article 24.4).
7.
Election Commissions should
not fall under the influence of a single political interest in order to be
perceived as impartial and trustworthy by a broad political spectrum.
8.
The election commissions have
a lot of powers and too many duties (registration of candidates, selection of
complaints, electoral process, etc.). The members may not have enough time to
appropriately fulfil all these duties.
9.
The training of members of
polling stations is crucial. Members of different levels of election
commissions must be recruited on a basis of experience. The Code could envisage
more guarantees to ensure adequate training to commissioners. The quality of
the electoral process mainly rests on the level of professionalism of the
commissions.
10.
The Precinct election
commissions should be formed earlier than stipulated in the Code (ex. Article 36.1 for the Precinct election
commissions, formed at least 40 days prior to the voting day).
Transparency
11.
Provisions on transparency
have been strengthened, particularly regarding the issuance of protocols to
interested parties and the mandatory display of election protocols at all
election commissions’ levels.
12.
The General Section of the
Code provides that protocols of election results are issued to all interested
parties at all level of commissions. However, Constituency election commissions
must be required to issue certified copies of protocols with a full breakdown
of results for each precinct within the constituency. In turn, the Central
Election Commission must be obliged to publish election results from all
Precinct election commissions and aggregated results from all constituencies.
This provision would greatly increase the transparency of the tabulation
process. Without such an obligation, the distribution of Precinct election
commissions’ protocols are virtually worthless, as they cannot be
cross-referenced with the Constituency election commissions’ results.
13.
Article 42.1.8 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, the cost in time and effort of
processing the fee payments is unlikely to justify the revenues thereby raised.
Suffrage
and voter lists
14.
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 45).
Registration of candidates / Signatures
15.
The number of required
signatures for the parliamentary elections has been reduced compared to
existing legislation. However, the rules on the number of signatures required
in order to register presidential candidate (45,000) or referendum campaign
groups (60,000) remain too 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 in all elections.
16.
Some innovations are welcome
on the verification of signatures, such as the presence of observers, the
distribution of protocol on results of checking signature sheets to candidates.
However, it should be made clearer that all signatures are checked and that a
candidate is registered as long as he collected the required number of valid
signatures (see comment on Article 60.2.3).
17.
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. Therefore, 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. For
instance, minor mistakes in petition sheets could be rectified within a certain
period of time.
18.
Relevant election commissions
should have the obligation to publish the list of registered candidates.
Cancellation
of candidates
19.
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.
The
media
20.
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
21.
a) Provisions on observers
have been amended but need further improvements. The rules on who may act as an
observer and the registration process have been clarified. However, the
registration process is cumbersome and the deadlines are extremely strict. The
Code now foresees the right of non-governmental organizations to accredit
observers (Article 40.5). However, public associations, including those
receiving foreign funding, should be permitted to observe the election process.
This clause should be added to the Code.
b) The Code seems to establish
diverse rules for different types of observers. Domestic and international
observers should enjoy the same rights and duties.
c) Observers should have the right
to observe the entire electoral process, including printing and distribution of
ballot papers.
Election
Day
22.
a) The safeguards related to
the use of the mobile ballot have been reinforced and should therefore limit
possible abuse and fraud.
b) The use of transparent ballot
boxes is a welcome innovation though ODIHR and the Venice Commission were
informed that this provision had been regrettably removed from subsequent
drafts.
c) The inking of finger of voters
who voted is a welcome novelty (Article 104.6). It will contribute to
appropriately and efficiently limit the possibility of double voting.
d) 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.
e) The prohibition of any other
persons than voters, commission members, accredited observers and the police
(if called upon by the Chairman) at polling stations on election day is a clear
improvement and will avoid undue interference in election day proceedings.
Claims
23.
There is generally an
improvement in comparison with our previous recommendations, but there is also
a necessity of simplification, of clarification. Rules on complaints in Chapter
16 (Articles 112 and following) are confused and unclear. The previous draft
complaints system has been amended with the insertion of paragraphs 112.2 and
112.3 which, however, are not consistent with the old, unchanged rules
especially Article 112.4. The relationship between the judiciary and the
election commissions is not clear. Which is the “relevant court”
according to Article 112.3 should be clarified, possibly with reference to
civil procedure code. During our visit the delegation had been informed that a
reference to the Civil procedure Code (Chapter 25 on protection of electoral
rights) would be made, but it has not happened. Moreover, Article 112.11 has
quite different deadlines from those of Article 291 of Civil procedure Code.
Article 114 is extremely dangerous and leaves to the Judiciary a power to
invalidate elections or cancel voting results without proper safeguards.
1.
Preamble
Not all five principles
underlying Europe’s electoral heritage contained in the Venice Commission
Guidelines on Elections are explicitly reflected in the Code. The principles of
free elections should be included in the preamble. The term “general
suffrage” should be replaced by “universal suffrage”.
The word “opinion poll” in the
preamble is confusing and only referendum should be used. An opinion poll and a
referendum are two very different consultations.
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 whether it is also binding when it
is negative.
General Section
Section One. Main definitions
2.
Article 1.1.13
The
term “Pre-election campaign” should
be replaced by the term “election
campaign”. Therefore, the
drafters should delete the expression “Pre-election
campaign” from the Code. At the same time, we suggest 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 election day.
3.
Article 9
Article 46.2 and Article 9 are saying something different,
because Article 46.2 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 “place
of permanent residence”, which should be retained.
This comment applies also to Article 146.1.
4.
Article 11
a) 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”.
5.
Article 12
It is
advisable to modify the article as regards citizens being 18 on the actual day of the election with the additional precision: “day of election included”.
6.
Article 13
The norm should be clarified. A
general principle on passive suffrage should be introduced: 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 144 and 179.
Article
14 of the Code does not make a clear distinction between the cases of
ineligibility and incompatibility. The norm of Article 14 should separated
paragraphs 1 to 5 regarding cases of incompatibility and paragraphs 6 to 8
related to cases of ineligibility. Ineligibility
indicates the impossibility of standing for election. Incompatibility means that after the election, the new persons
elected as deputies (or to another mandate) have to choose between his/her
mandate and other functions; in the private or public field, which could
prevent the person elected from freely and independently carrying out his/her
functions.
8.
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. The Venice
Commission and the OSCE/ODIHR were informed during their last visit in Baku
that this obligation is contained in the Constitution.
Same
comment for Article 212.
9.
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.
Section Two. General provisions
a) The confirmation of the principle of independence of
election (referendum) commissions from the State, municipal institutions, as
well as from political parties and non-governmental organisations is
recommended. The wording is not accurate because the commissions are State
institutions and it would be important to rule out any interference by the
executive authorities in addition to private entities like political parties
(especially if commissions are multipartite) or non governmental organisations.
b) The provision clearly rules out interference by State
organs. However, adding the words “according
to legislation” at the end of the provision (after criminal liabilities) is
recommended in order to clarify imprecise wording of Article 17.3.
11.
Article 17.4
a) The
provision should also add State organs, together with municipalities and private
parties that are bound by election commissions’ acts and decisions as should
public order forces within the boundaries of their authority.
b) We
recommend to replace “shall be obligatory
for municipalities functioning within the relevant territory…” by “shall be obligatory for all territorial
entities…” (not only for the municipalities and their relevant
territories).
12.
Article 17.5
The Code should provide guarantees for protection of data
on voters.
See also Articles 25.2.19, 31.1.14, 45.10, 94.2 and 94.4,
and 115.
13.
Article 17.6
a) The article establishes a range of requirements which
electoral commissions should follow. The actual meaning of some of these
requirements, such as Articles 17.6.9
and 17.6.11, is far from clear.
b) This article should also clearly
stipulate that decisions of superior commissions are binding on inferior
commissions.
14.
Article 17.7
Establishing a number of
requirements and then stating that some of them are optional, is not
acceptable. This provision should be revised. See also Article 49.
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.
16.
Article 19.12
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.
17.
Article 20.1
The
requirement in Article 20.1 for weekly publications to give a page of free
space to electoral commissions should be limited to publicly owned publications
referred to in Article 77.1. About
this subject, see comments on Articles 77 and 78.
18.
Article 21
The
fourth paragraph should add that only representatives from political parties or
referendum campaign groups which have merged can be recalled.
19.
Article 22.1
a) The provision that political parties and blocks of political parties nominated a
candidate, referendum campaign groups cannot be members of election
commission is likely to be a mistake, maybe of translation.
b) 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. Same comment for Article 36.2.
The provision that “an election
commission member can be member of only one election commission, indistinctly
with a decisive or a consultative voting right” could be written in simple
terms. We suggest: “A member of an election commission can be member of only
one commission, indistinctly of his/her status (i.e. with a decisive or a
consultative voting right).”
21.
Article 22.3
This rule should be spelt out
explicitly: “the bodies appointing members of electoral commissions must not
be free to dismiss them at will”.
22.
Article 22.4.2
This
paragraph seems to be made redundant by paragraph 1 of the article.
23.
Article 22.4.3
The Venice Commission and the ODIHR were informed that the
term “close relative” is defined in
the Family Code. A clear reference to it should be made in this article.
24.
Article 22.7
Reference
to relevant legislation, such as the Criminal Code, should be clearly made in
case of violations of the provisions of this Code. Moreover, it is suggested
that procedure should only be conducted 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.
25.
Article 22.12
This paragraph could be
shortened. It could
be stipulated that a member of an election commission with consulting
voting right can only participate in actions regarding the relevant commissions
(related to referendum, presidential elections, elections to the Milli Majlis,
municipality elections).
26.
Article 24.1
a) It
is recommended to indicate clearly that the composition of the Central Election
Commission shall consist permanently of 18 permanent members, and shall
increase up to 21 members for the elections period (because of the three judges
who are involved only for this period).
b) This
article that assigns a role for “independent
lawyers” in the Central Election Commission should exclude lawyers engaged
in State service.
27.
Article 24.3
There
is a contradiction between Article 24.1 stipulating that “1/3 of members of the Central Election Commission
shall represent the political party nominating them”, and Article 24.3 that
states that “Member of the Central
Election Commission cannot represent any political party”. This should be corrected.
28.
Article 24.4
The Chairman, deputy Chairman and
the Secretary should represent the three different political groups present in
the Central Election Commission, if these three groups have presented
candidates to such functions.
29.
Articles 25 and 26
The
provisions should refer to Article 28.5 regarding
the question of internal rules of procedure. Indeed it is recommended to
distinguish between the Central Election Commission’s powers and duties. The
accreditation of observers should be part of the Central Election Commission’s
functions.
30.
Article 25.2.17
The relationship between the
unified registration system and the voters lists is not regulated.
See Article 43.1.
31.
Article 26.1 to 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.
32.
Article 26.2
The
Central Election Commission should publish the lists of all registered
candidates by constituencies, the day after the end of the registration process
(Milli Majlis, Municipal elections).
33.
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”.
34.
Article 28
Regarding
the rules of decisions and vote in the Central Election Commission, the
Chairman of the Central Election Commission should not be a member or represent
a particular political party in the Milli Majlis.
35.
Article 28.5
Internal
rules of procedures should be published in the mass media, in relation to Articles 25 and 26.
36.
Article 29.1
Our
previous recommendation has been implemented. Nevertheless, it is advisable to
include a short provision which should indicate that the Article 29.5 explains the duty of a
specific boundary commission,
i.e. the task of drawing the limits of
the electoral districts.
37.
Article 29.3
Although
some criteria of distribution have been openly stated as requested by the
Venice Commission and ODIHR, the equality and proportionality of distribution
is not however enshrined in the law, as was also suggested.
38.
Article 29.5
The
Code should detail the composition of the boundary commission.
See
also the comment about Article 29.1.
39.
Article 30
The
words “can be agreed” should be changed to “must” otherwise the
provision on the “supra-majority” become virtually worthless.
40.
Article 32
a) The
article, which lists the “Activity
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).
b) This
article should include the obligation to publish lists of the registered
candidates the day after the end of the registration process (Milli Majlis,
Municipal elections) in their respective constituency, as well as the
preliminary results (by polling stations) after each election.
41.
Article 35.3.1
The
maximum number of voters in a precinct should be reduced from 2,000 to 1,500
voters.
42.
Article 35.7
The
advisable time, and not only the deadline, should be indicated (3-5 days prior
to the meeting).
43.
Article 36.2
The reference of an article cited in the
article is missing.
See comment Article 22.1,
b).
44.
Article 36.3
It is
advised that the two additional members should be agreed with the majority and
minority quotas in the relevant Constituency Election Commission. Otherwise the
political balance in Precinct Election Commission would be broken. Officials
from executive authorities should be excluded from obtaining membership in
precinct commissions.
45.
Article 36.5
This
article is redundant with Article 40.12 and should
be removed.
46.
Article 36.6
Article 36.6
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, or for election precincts with
number of voters not more than 100 and not less than 50. It is recommended to replace “composition of the precinct election commission can
be approved by the constituency election commission” by “… shall
be approved …”, or to find a
similar meaning.
How
shall the specifically authorized member of the precinct election commission be
chosen? This could be done by election or by lottery. However, the Chairman or the secretary of the commission
must be responsible for determining the election results.
48.
Article 40 and 42
The whole article is still
confusing and redundant. See also the Article 42.1
about the common status.
a)
Provisions on observers have been amended but need further improvements. The
rules on who may act as an observer and the registration process have been
clarified. However, the registration process is cumbersome and the deadlines
are strict. The Code now foresees the right of non-governmental organizations
to accredit observers (Article 40.5). However, public associations,
including those receiving foreign funding, should be permitted to observe the
election process. A clause to that effect should be added to the Code.
b) The
Code seems to establish diverse rules for different types of observers.
Domestic and international observers should enjoy the same rights and duties.
c) All
observers, including international observers, should have the right to observe
the entire electoral process from the beginning of the commissions’ work until
the certification of the final election results. Observers, including
international observers, must have permission to attend meetings of the
election commissions and to observe the printing and distribution of ballot
papers. Observers should not be limited to the observation of the work of the Precinct
election commissions (See Article
40.11).
d) All
observers’ rights should be enumerated in a single article.
e) Article
40.12: This
provision is redundant with Article 36.5.
f) The
list in Article 40.13 should make specific reference to places of
detention.
g) Article
40.15: Observers should not be assigned to one specific polling station but
they should be able to move freely from one polling station to the other.
49.
Article 41
a) The article sets out a number of “principles”
of observation. The purpose of enumerating such principles in the Code is far
from clear. It 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. In addition, notions like open is too vague.
b) In summary, Article 41 is some kind of
code of conduct for observers. For this reason, these principles should be
reproduced at the back of the accreditation card – in accordance with our
recommendations – but not necessarily in the Code.
50.
Article 42.1
Observers may also write observations during
the whole election process (under the terms of Article 40), in the commission’s
protocols or attached to it, or to the protocols on voting results and the
election returns. Such observations could be an additional evidence in case of
complaints in the litigious constituency or voting station.
51.
Article 42.1.8
a) We
suggest to write Article 42.1.8 as follows: “to make or obtain 1 copy and then photocopy and obtain other copies of
protocols on voting results and election (referendum) returns, documents and
attached documents prepared by [precinct and constituency] election
commissions.”
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, the cost in time and effort of
processing the fee payments is unlikely to justify the revenues thereby raised.
52.
Article 42.1.10
The
possibility to observe the transfer of election documents to Constituency
Election Commissions and the Central Election Commission is commendable.
53.
Article 42.3
Article
42.3 is redundant.
54.
Articles 45.1
and 45.10
a) Guidelines on Elections by the Venice Commission (I. 1.
1.2.) 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 or at lower level any time throughout the year
(the Central Election Commission being a permanent body), by each citizen.
See Article 25.2.17.
b) Article 45.1 provides that additions and amendments to
voter lists cannot be made on polling day. This provision and Article 101.8 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 rule fits in with Article 48.2,
which allows for the correction of mistakes in voter lists on election day.
c) Article 45.1: it is suggested that “until voting day”
be replaced by “including voting day”.
d) Deadlines specified in Articles 45.1 and 45.11 for the
preparation of voter lists are inconsistent and should be amended.
55.
Article 45.6
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.
56.
Article 46.2
See the comments in the Article 9, b) and d).
57.
Article 46.10
It is recommended to specify the
sort(s) of administrative liability(ies) as a sanction in this provision. Then,
the possible sanctions should be spelled out in the Code or a reference to the
relevant legislation should be made.
Voters should be notified about
their exclusion from the voters list, by letter, for instance.
59.
Article 49
a) The
article lists 22 principles that should be followed by political parties and
blocs. 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 71 as Participation
Principles of Registered Candidate in Elections. It is a clear case of
repetitions that should be avoided.
b)
Moreover, part of requirements are optional, which is not acceptable. See also Article 17.7.
60.
Article 49.1
a)
Since the principles are not binding but voluntary (see Article 49.2), it would be better to exchange the word “must” for “should”.
b)
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 49.1.20). This provision should be
read like Article 71.1.19.
61.
Article 53.1
It
would be a good idea to indicate in these articles the number of signatures
required to support candidates.
See Article 56.
62.
Article 53.3
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.
The same issue arises in several
other provisions of the Code, such as Articles 56.3, 57.5, 165.3 and 201.3.
63.
Article 53.4
This article relates to the
right to indicate his/her party affiliation in the nomination documents. Such a
provision could confuse the voters; and could lead to a situation where several
candidates from the same party run in a particular constituency.
64.
Article 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.
65.
Article 56
See the comment on Article 53.1.
66.
Article 56.3
See the
comment on Article 53.3.
67.
Article 57.1
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.
68.
Article 57.4
a)
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.
b) In
theory, such a provision is justified, but, in practice, its implementation is
difficult to control and there is a risk of a voter being object of pressure in
order to sign for a candidate, and then prevented to sign for another one.
69.
Article 57.5
See
comments on Article 53.3.
70.
Article
57.9
The last sentence is difficult
to understand, possibly due to a problem of translation.
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).
72.
Article 58.6
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.
Same comment for Article 65.
73.
Article 60.2
It is advised to add that
refusal of registration is subject to the principle of proportionality.
This has been a problem in the past and this article opens the door to abuse to
get rid of unwanted candidates.
See Articles 68, 68.2, 88.7
and 108.1.
74.
Article 60.2.2
Technical
mistakes should not be a reason for a refusal of registration. This is a
drastic sanction ignoring the principle of proportionality. Election
contestants should have the chance to correct them.
75.
Article 60.2.3
It is strongly recommended to
delete the provision: or if more than 10% of checked signatures of voters
are invalid. The number of valid signatures should be determinative.
Otherwise there would be possibilities for abuse by political opponents. In summary, 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.
The
same comment applies also for Article 68.2.3.
See also Article 216.
76.
Article 60.2.4
The
article is very vague (what kind of information?).
77.
Article 60.2.5
Mistakes
can be unintentional.
78.
Article 62
See
comments on Article 49.
79.
Article 65
Same
comment as Article 58.6
80.
Article 68
See
comment on Article 60.2.
81.
Article 68.2
The comment for Article 60.2
applies here as well.
82.
Article 68.2.3
See Article 60.2.3 for the same comment.
83.
Article 69.3
a)
It suggests that candidates can retain their job in State positions, in
apparent contradiction with the previous paragraph (69.2) that requires
them to be released from their employment. This could be a translation mistake.
Paragraph 69.5 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.
b)
Another important point: The new text refers to those civil servants appointed
directly by the President of the Azerbaijan Republic or Milli Majlis of the
Azerbaijan Republic, who are excluded from the obligation of release. Such
exception seems not to be rational, and therefore is not acceptable.
84.
Article 71
See comments on Article 49.
85.
Article 73.2
The possibility for candidates to withdraw three days
before election day 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 Articles 93.1.2, 202.5 and 221.1.
86.
Article 73.3
The reason for withdrawing candidacy: “illness that seriously affects his/her health…” does not mention
the body which determines whether this is the case. This body would also have
to be a court, or maybe a medical commission. In the last discussion in Baku,
we were told this is defined in the Labour Code. If it is the case, a reference
should be made to the relevant legislation.
This comment also affects Article 146.9.
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 2000 comments largely still apply to the draft Code.
87.
Article 74.1
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.
88.
Article 75
An election contestant should
enjoy the right of reply if s/he has been defamed.
89.
Article 75.1
Election campaigning is not
allowed between election day and the day before election. The word “or”
should be replaced by the word “and”. This would better express the
intention of the drafters and be a precise rule.
90.
Articles 77 and
78
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 20.1.
91.
Articles 80 and
81
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 81.4).
92.
Article 81.2
It is maybe a problem of
translation but there is no conceivable reason why “referendum campaign groups members of which are more than 20 thousand
cannot use this airtime”.
93.
Article 81.7.4
The
provisions in the article on the allocation of paid air-time and the reference
to a leading journalist are not clear.
94.
Articles 84.3 and 84.4
A
minimum access of all candidates to periodicals should be provided for.
95.
Article 86.6
The
possibility for observers to attend pre-election meetings in military units is
welcome but should be moved to the General Section where observers’ rights are
listed.
The
security and public order forces must not block or disturb the meetings. They
should be present near the entrances but not inside.
97.
Articles 87 and 88 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
also 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.
98.
Article 87.6
The information could be
displayed on notice boards.
See
solution for Article 60.2, a).
99.
Articles 88.1, 88.2 and 88.3
a) 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.
b) The drafter partially
implemented our previous recommendation by introducing the notion 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.
c) The words “Subject to the freedom of expression”
should be included somewhere in Article 88.1. This is important since the terms
“citizens’ honour and dignity” are
imprecise and can equally be abused.
100. Article
88.6
The formulation “distribution and broadcast of information
which impugns the prestige, dignity, and honour of the candidate” is
problematical for the following reason: 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. Honour and
Dignity should be sufficient to protect legitimate reputational
interests.
101. Article
88.7
a) The reference to Articles 87.2
and 87.3 in Article 88.7 of the Code is irrelevant. It must be a mistake.
b) 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.
c) 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. And parties/candidates should have the time to rectify these
minor errors.
The same applies for Article 108.1.
102. Article
89.3
Provisions
about election funds, which are not transferred in time or fully, should be
removed from the Code.
103. Article
90.2
The
words “assistance in kind” are unclear and should be deleted.
The
provisions in Article 90.2.12 appear to be duplicated in Articles 93.1 and 93.2.
104.
Article 93.4
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.
105. Article
94.3
To require three different
financial reports seems excessive. This is true given the fact that banks are
required under Article 95.2. to
report regularly about the movements on the special accounts.
106. Article
96.3
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.
Section Four. Holding of Elections (referenda)
107. Article
97.3
The comment for Article 96.3 applies to this provision
as well.
108. Article
99.2
The
requirement that ballot papers are numbered is a welcome enhancement of ballot
security, as is the proposed use of voting envelopes (Article 104.10).
The number should be put so that it does not appear on the ballot paper that is
cast in the box.
The
Special Section of the draft Code fails to make the necessary references to the
use of voting envelopes (Articles 167, 200 and 236).
109. Article
99.3
The authorities may wish to
envisage to submit the possibility of ballot papers with pictures and/or logos
(emblems of candidates or parties), for illiterate persons. It would also be
very desirable for result protocols to be uniquely and sequentially numbered.
110. Article
101, 101.2 & 101.4
The
voter should not have the possibility of voting in another election precinct
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. If this
recommendation is not retained, 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.
111.
Article 104
A clear
procedure should be included for electors presenting voter card on voting day
in order to vote in a precinct, where they are not included in the Voter list.
The voting cards could be attached to the precinct protocol.
112.
Article 104.6
The
inking of finger of voters who voted is a welcome novelty that will contribute
to appropriately and efficiently limit the possibility of double voting.
113. Article 104.8
It is recommended that ballot papers are not signed at all.
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.
An
observation must be made on the final polling station’s protocol, explaining
the circumstances and the number of votes spoiled.
115. Article
104.14
a) Law
enforcement agents should enter polling stations only to restore, not preserve, order, and must leave again immediately once
order has been restored.
b) It
is a drastic decision to annul the vote in a given precinct where the vote has
been disrupted for two hours. This clause may open door to abuse: voting could
be disrupted on purpose in order to invalidate the results not favourable to a
candidate or party. This provision should be amended.
This provision for using mobile
ballot boxes has been
revised to limit to possibility of abuse. The safeguards (written request in
advance and cancellation of the mobile voting if the number of ballot exceeds
the number of request…) are appropriate to limit fraud. “And other reasons specified as good ones by the Central Election
Commission” is however far too vague.
117. Article
105.3
The number of used and returned
ballot papers from voters requesting a mobile ballot box recorded in a separate
document must be attached to the final polling station’s protocol.
118. Articles
106 to 109
Articles 107, 108 and 109 are new articles.
Article 106.5: “All precinct election commission members and
observers…” should be advised of the results of voting by the delivering of
a copy of the protocol immediately after its signature and before delivery to
the superior commission.
119.
Article 106.3
It is advisable to add a precise
list of cases of invalid ballot papers.
120. Article
106.4
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.
121. Article
106.7
It is recommended that voter lists together with voting
cards be delivered to Constituency Election Commissions together with the other
election material. In addition, the election material should be delivered to
the constituency commission by the Chairperson and other polling station
members representing different political interest.
122. Article
107
The Article should
establish a procedure for receipt of polling station protocols and other
election material. The Constituency commissions should first check whether all
documents are delivered, second introduce all data from the protocol in a
summarization table (see comments on Article 203) and/or in a computer (when available); third, check
whether there are discrepancies in the results; and fourth issue a receipt
signed by the Chairman of the constituency commission, certifying that the
polling station members have handed over the necessary documents. This will
improve the tabulation process and limit mistakes.
123. Article
109
This article should provide more details on what results will be published by the Central Election Commission.
As mentioned before, the Central Election Commission should publish detailed
results by constituencies and by polling stations within a time-limit of 5
days. The details results could be publish in the media and/or on the Central
Election Commission website.
124. Article
110.9
It is recommended to add this provision
at the end of this paragraph: “The State guarantees security and
non-dissemination of information on voters.”
125. Article
112.1
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”.
126. Article
112.8
This
Article needs clarification. 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.
127.
Article 113.1
See comments on Articles 88.7
and 60.2.
128. Article
113.2
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. Depending on the degree of the violations a fine could be
considered.
129. Article
113.2.2
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.
130. Articles
113.2.5 and 113.2.6
0.1% 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).
131. Article
113.2.7
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.
132.
Article 114.1
Here
again, the principle of proportionality must apply. Small or technical
violations of certain rules do not justify a cancellation of elections.
133. Article
115
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 115.1.6:
“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.
Special Section
Section Five. Referendum
134.
Article 118
The
Constitutional Court is the most appropriate institution to decide whether a
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.
135.
Article 122
a) 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 122 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.
b) 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.
136. Article
127
The
provision providing the possibility for referendum campaigning groups to
independently decide on the form of use of TV and radio airtime and space in
periodicals was removed and should be reintroduced.
Articles 127.1-6, 155.1-6, 189.1-6 and 224.1-6 have the same
content and should be transferred in a properly formulated common text to the
General Section.
137.
Article 128.3
The limit of election funds for referendum campaigning
group with 40,000 members or more was reduced to 100 000 times the minimum
salary instead of 250 000 previously while the limit for referendum campaign
groups with 20,000 members or more is fixed at 150,000. This is inconsistent
and the provision should be amended.
138. Article
131
The Article was simplified compared to the previous draft
by removing the texts related to unsuccessful referendum campaigning groups.
The obligation for returning unused election funds to donors in proportional
manner for both not registered and registered referendum campaigning groups remains, contrary to the OSCE/ODIHR and
Venice Commission’s recommendation. It should be noted that in many
other occasions the advice was accepted.
139. Article
132
This article provides for the transfer of unspent funds to
the budget 60 days after the voting day as
recommended by ODIHR and the Venice Commission.
See Article 229.
Many of the repetitions existing
in the previous draft are now avoided.
141. Article
135
The
deadline for announcement of the “final outcomes” is increased from 10 to 15
days after a referendum. It still does not presuppose that all possible
complaints have been finally determined as previously recommended.
142.
Article 138
The
turnout requirement has been completely eliminated. It raises concerns
especially as regards constitutional amendments that require approval by
referendum.
143.
Article 139
According to this article, the Referendum results is
declared invalid if violations of the law caused the invalidation of the
results in more than 50 constituencies or in more than 2/5 of the polling
stations, compared to more than ¼ of polling stations in more than ¼ of the
constituencies in the previous draft. It is difficult to consider the results
of a referendum acceptable if the election results were cancelled in 40% of the
constituencies or precincts due to violations, even more so when no turnout
requirement is envisaged.
Same comment for Article 240.2.1.
144.
Article 139.1.1
It is
not clear what situations are covered by this provision that should be
formulated in a more precise manner.
145.
Former Article 141.2
The possibility for each citizen to appeal to the Court of
Appeal and request the invalidation of the referendum within 10 days after the
announcement of the results is now removed. It should be reintroduced.
146. Article
144
See the
comment about Article 13.
147.
Article 145
This article is wrongly referred twice in Article 149
devoted to postponement of elections. It is unclear whether the intention of
the author was to refer to Articles 144 or 146.
148.
Article 146
This article was simplified and considerably shortened. The
necessity of this provision is doubtful if all commissions are permanent
bodies. (See also Article 214.6).
149. Article
146.1
See
comments on Article 9,
b).
It
appears that the drafter considers that the clarification given to the
expression “residing mostly” in Article 46.2 is clarifying this matter.
See Articles 212, 214.1.
150. Article
147.1
The
number of signatures necessary for the registration of candidates in
single-mandate constituencies is reduced to 450. This is a welcome development.
151.
Article 147.4
This article is redundant with Articles 56.5, 181.4 and
215.6.
152. Article
149
The reference to
Article 145 is wrong and must be corrected.
153.
Chapter Twenty
three – Articles 153 and 154
It
would be preferable not to allow any withdrawal of candidates, in order to
avoid pressures. 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 Article 166.3.
154. Article
155
a) The reference in Article
155.6 should read 155.2 instead of 152.2.
b)
Political parties that have registered candidates in more than 60
single-mandate constituencies enjoy more possibilities to campaign, which seems
reasonable (e.g. Articles 155.2, 155.4-5). On the other hand for
financial matter, a distinction is made for parties who registered candidates
in more than 50 single-mandate constituencies (e.g. Articles 156.3, 157.2).
A similar criteria should be adopted for both election campaign and finance
purposes.
155. Article
157.4
See
comment on Article 93.4.
156.
Article 159
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.
157.
Article 160
There is a inconsistency between Articles 160.1 and 160.4:
the first article provides for an obligatory return of unexpended funds to
donors (“must”) by candidates who have not been registered, while the
second gives the choice (“can”) to the registered deputies, who did not
collect 10% of the votes to return money. See comment former [165] Preliminary
Assessment. Article 160.1-4 is repeated almost literally in Article
193.1-4 (without the inconsistency mentioned above – in both places the
candidate can return money to donors) and Article 229.1-4. They should
be harmonised, merged and moved to the General Section.
158.
Article 161
a) It should be “more than 50” (the beginning of
line 6).
b) Candidates who have received at least 10% of votes do
not have to reimburse funds received by the Constituency Election Commissions
and do not have to pay the costs related to “free” TV and Radio airtime and
space in periodical. This is too high and should be reduced to 3%, as it was
previously. Alternatively, partial reimbursement could be envisaged for
unsuccessful candidates.
Same comment applies for Article 194
and Article 230.
159.
Article 162
In Article 162.4, “with a registered list of candidates”
should be changed to “with registered candidates in more than 60
single-mandate constituencies”.
Many repetitions are noted in Articles 162.1-6, 195.1-6,
231.1-6. Three paragraphs could be
reformulated, uniformised and transferred to the General Section.
160.
Article 164
Articles
164, 197 and 233 are quite similar and
should be transferred to the General Section.
161. Chapter
Thirty
See Chapter Fifteen (Section Four); the text is often repetitive.
162. Article
165.3
See the
comments on Articles 53.3
and 198.3. The same applies for Articles 198.3 and 234.3.
163. Article
166.3
See the
remark Articles 153 and 154. Same comment
applies for Articles 199.5 and 235.5.
164. Articles
167.3, 204.2 and 234.3
Neither the General Section nor in the Special Section
mention the case of an empty envelope.
Same comment for Article 234.3.
165. Article
169.2
The article should provide for a deadline of 48 hours after
election day for the preparation of the Constituency Election Commissions’
protocols and for their delivery
with other materials to the Central Election Commission. The same should apply
to Articles 202.1 and 238.2.
166. Article 170.2
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).
ODIHR
and the Venice Commission suggest the following addition: “… a deputy, from another constituency, cannot …”. The same remark
applies to Article 176.5.
In the
case of incompatibility, the Constitutional Court should be the only body that
could remove a deputy, and not the relevant election commission.
169.
Article 174
a) The
article was shortened and provides only for publication of final detailed
results with information on the elected deputies and the data from Constituency
election commissions’ protocols. The publication of the results from individual
precincts is an exceedingly valuable rule that was regrettably removed from the
revised draft. This provision should be reintroduced.
b) In
addition, it is difficult to see any reasons for such a long period for any
publication of results. The publication of detailed results should be
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 89.1.1-6 and not 89.2
of the Constitution.
171.
Article 178.1
This article is unclear and this
may be due to a problem of translation.
172.
Article 181.1
a) The
number of signatures necessary for the registration of a candidate is reduced
from 50,000 to 45,000 in the existing legislation. However, it was increased
compared to the very first draft received by the ODIHR and the Venice
Commission. The number of signatures should be reduced to 40,000 which will be
in line with the number of signatures collected by referendum campaigning
groups.
b) Additionally, a minimum of 50 signatures compared to 500
in the working draft have to be collected in no less than 60 constituencies.
173.
Article 182
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?
175.
Article 183.1
“Elections for the
relevant constituency” should read “elections
for the President”.
176.
Article 184.2
A reimbursement with documents
should be envisaged in order to prove expenses. The same remark applies to Article
218.2.
177.
Articles 190.3 and 190.4
These articles should mention that
the person who has the mandate is liable in case of violations.
178.
Article 193
The reference to Article 190.1
should be Article 193.1.
179.
Article 194
See comment on Article 161.
180. Article
198.3
See
comment on Article 165.3.
181. Article
199.4
The
reference to the ballot paper “Against all candidates” should be deleted.
182. Article
199.5
On the
withdrawal of candidates, see comment on Articles 166.3 and
73.2.
183. Article
202.1
See
remark about Article 169.2.
184. Article
202
It
seems that there is no provision providing for the invalidation of the results
by Constituency Election Commissions or the Central Election Commission in a
given constituency. Such a possibility
(similar to that for polling station results provided by Article 106.10)
is neither provided in the General Section. Consequently, it is unclear how the
results in a constituency can be invalidated though such a situation is
provided for in Article 204.1.1.
185. Article
203
a) The existing legislation for the Elections to Milli
Majlis (Articles 73.9, 73.12) provides that:
-
A summarization table for the
results in the nation-wide constituency (containing the results in all 100
constituencies) should be prepared and must be attached to the Central Election
Commission’s Protocol;
-
Verified copies of the
protocols and the summarization table be submitted to all Central Elections
Commission’s members and observers.
b) Such provisions enhance the transparency of the tabulation process
at the Central Election Commission level for elections in nation-wide
constituency. Unfortunately, Article 203 does not include such
provisions. This is a step back compared to existing legislation.
c) It is highly recommended to include such provisions for all
elections in nation-wide constituency (presidential elections and referendums)
in the Special Section. Similar obligations should be introduced in the General
Section for all kind of elections at the first level of the tabulation process
(i.e., Constituency election commissions). The State Automated Information
System could be easily used for this purpose.
See comment Article 107.
186.
Article 203.1
Following the 24 August 2002 referendum, the time-limit for
submission of the results of Presidential elections to the Constitutional Court
is increased to 14 days. However, this change does not mean that all complaints
and appeals have been finally determined.
187.
Article 206
Such
an important decision should be a decision from the Constitutional Court.
188.
Article 208.2
This
provision on the publication of detailed results of all constituencies and
precincts should be extended to all elections and be moved to the
General Section. 5 days for both polling stations and constituency protocols
should suffice.
Section Eight
189.
Article 210.1
“Nationwide
constituency” should be changed to “multi-mandate constituency”.
The
number of municipal members should be more important considering the number of
people in each constituency.
191.
Article 211.2
This provision should be clarified
unless it is a translation problem.
192. Article
212
See comment on Article 14.3.1.
Moreover, if the Code permits
immigrants to vote, it is strongly recommended to permit the vote of citizens
with dual citizenship.
193. Articles
212, 214.1
See the comment in the Article 146.1.
194. Article
215.6
This article is redundant. See
remark Article 147.4.
195.
Article 216
Reference is made to Article 60
(General Section), where “other reasons established by this Code” is
omitted, following the recommendation [119].
On the other hand in Article 60.2.3 the 10% limit for
invalidated signatures is still present, otherwise removed in other places in
the revised draft Code.
196.
Article 217
The
Article provides for the postponement of the municipal election if none or only
one candidate was registered or remained on the ballot. It should be changed to
provide for postponement in the case of the number of registered candidates is
less than the number of municipal councillors provided in Article 215
(or less than 2/3 of this number in view of Article 244).
197. Articles
221.1
On the
withdrawal of candidates, see comment on Article 73.2.
198.
Article 223
This article is confusing unless
it is a problem of translation.
199.
Article 224
See remark Article 127.
200.
Article 225.2.3
The
date for transferring the money allocated by Constituency election commissions
to candidates is very late – only 25 days before the elections. The money
should be transferred immediately after the end of the candidate registration.
201.
Article 225.5-7
The creation of unified election
fund is provide for political parties or blocks if they have registered
candidates in more than half of all municipalities. However, the limit of 200 times
the minimum salary is unrealistically low.
202. Article
229
The obligation to return the unspent
money to donors remains in Article 229.1 for candidates, who were not
registered, while for registered candidates Article 229.4 provides for
voluntary return. This is not consistent with Article 132.
203.
Article 230
See comment on Article 161.
204.
Article 231
See
comments on Article 162.
205. Article
234.3
See
comment on Articles 167.3
and 165.3.
206. Article
235.5
See
comment on Article 166.3.
207.
Article 238.1
The word “precinct” should be removed. It may be a translation problem.
208.
Article 238.2
It is advisable to shorten the
time-limit about the determination of results. Multi-mandate districts elected
by plurality votes can cause electoral confusion and encourage many abuses.
They can also produce very disproportional results.
209. Article
240.2.1
See comment on Article 139.
210.
Article 240.2.2
Second item: in what cases may a
court cancel the election?
