|
Strasbourg/Warsaw,
1 September 2003
|
CDL (2003) 54
Or. Engl.
|
|
Opinion no. 214/2002
|
|
JOINT FINAL ASSESSMENT
OF THE ELECTORAL CODE
OF THE REPUBLIC OF AZERBAIJAN
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)
on the basis of comments by
Mr Georg NOLTE (Venice Commission,
substitute member, Germany)
Mr Eugenio POLIZZI (Venice Commission,
expert, Italy)
Mr Joe MIDDLETON (OSCE/ODIHR, legal expert)
Mr Rumen MALEEV (OSCE/ODIHR, election
expert)
CONTENTS
Introduction. 3
Simplification of the structure of
the code. 4
Registration of candidates. 4
Registration of voters. 5
Electoral campaign and finance. 6
Composition of election commissions. 7
The “draft model” suggested by
ODIHR and the Venice Commission. 7
Composition of the Central
Election Commission until 2005 – The transitional provisions 8
Provisions under the code. 10
Transparency measures and anti-fraud
measures (publication of results, election protocols) 11
Election observation. 11
Election day: ballot papers,
envelopes and protocols. 12
At the end of the election day:
turnout, publication and transmission of results. 13
Voting, counting and determination
of results. 13
Election disputes, complaints and
appeals. Sanctions of election violations. 14
A global improvement…... 14
… but a time-consuming procedure. 14
Who can file a complaint?. 15
Referendums. 15
Early Elections for the President of
the Republic. 15
Final remarks. 16
1.
After a prolonged genesis, the Electoral Code of the Republic
of Azerbaijan (below “the code”) was adopted by the national parliament (Milli
Majlis) on 27 May 2003. The Code
governs the conduct of referendums and parliamentary, presidential and
municipal elections in one very substantial and comprehensive document.
2.
Over the last year, the Venice Commission and the OSCE-ODIHR
(below “the two organisations”) engaged in an intensive dialogue with the
drafters of the code in order to improve the successive drafts. Both
organisations have produced a series of preliminary assessments (see footnote
1) suggesting a large number of recommendations.
3.
Since the first draft emerged more than a year ago, its contents
have undergone substantial transformations, partly in response to
recommendations and suggestions from the OSCE-ODIHR and the Venice Commission,
and from other organisations. The implementation of a large number of these
recommendations demonstrated the willingness of the authorities to bring the
code closer in line with international standards and best practices. However,
some important and other technical recommendations were not taken into
consideration and should be considered by the authorities of Azerbaijan in
future legislative reforms.
4.
The resulting text provides a comprehensive framework for the
conduct of elections and referenda and, in most respects, appears to meet
international standards and best practice. Naturally, this does not reduce the
need to ensure proper implementation, a need which has been acutely felt in
recent years.
5.
This final assessment focuses on substantial recommendations
that have been implemented and on major shortcomings still to be remedied. It
does not intend to elaborate on technical details already contained in previous
joint commentaries.
6.
In its final form the code remains an exceptionally long and
substantial document. Although drafters managed to remove some surplus material
(including some unnecessary and non-binding principles) and improved the
general layout of much of the content, overall the text remains very
cumbersome, detailed and thus difficult to use for election officials,
candidates and anyone wishing to make a
complaint. Repetitions with slight differences may mislead the reader
and violate the right of citizens to a clear understanding of the law. Examples
of these redundancies are provisions on the registration of candidates and on
campaign and financing provisions. The authorities in Azerbaijan will need to
invest considerable effort in publishing concise summaries of the code for
voters and election participants and in training election administrators in all
aspects of the code at all levels.
7.
With regard to the process of candidate registration, a large
majority of recommendations have been implemented:
i)
The number of signatures required to register a candidate for
parliamentary elections or a referendum campaign group has been lowered;
ii)
the number of signatures that a candidate can submit to
support his candidature is now unlimited: the previous article 58.6 of 3
December version of the code has been deleted. As a matter of consistency, in
the new system not all signatures will necessarily be checked, but the process
will stop when the required number of valid signatures has been achieved
(article 59.3 and 59.4);
iii)
during the registration process, candidates will be able to
correct minor errors made in submission documents: the new principle applies
both in the nomination and the registration of candidates process (articles
53.7, 58.2, 60.4). The English translation is unclear but the spirit is that
election commissions should not exclude any candidates for trivial mistakes
made in the registration documents.
iv)
a voter will be able to sign a petition sheet for more than
one candidate for parliamentary elections (article 57.4 deleted); it is
difficult to understand the rationale for the retention of the different option
in case of presidential elections (Article 181.2);
v)
the list of registered candidates will be published (article
60.7).
8.
Other important amendments are as follows:
i)
The principle of proportionality in the imposition of a
sanction was eventually included in the code: article 60.2 that provides for
cases when a candidate should be denied registration reflects this important
principle also enshrined in a number of other provisions. Moreover, the
previous warning has become a requirement in a number of cases before the decision
on refusal of the registration is taken into consideration. However, the
sanction should be proportional to the mistake, the shortcoming or the
violation (article 60.3);
ii)
limitations of passive suffrage for lesser crimes (article
15.3 of the criminal code) have been cancelled. However, all sentences are to
be recorded in the signatures sheets for collecting signatures (article 56.3).
For instance, the refusal or cancellation of the candidate (or referendum
campaign group) registration still remains a sanction which is adopted in a
number of cases specifically determined by the law.
9.
A number of provisions are meant to ensure equal status for
candidates during the nomination (article 55) and after registration (article
69). It is provided that State officials cannot abuse their position to ease
their nomination or to campaign after registration. Such provisions also apply
to journalists and “creative persons” who will be prohibited to cover the
elections by means of mass media.
10.
The recommendation that the number of registered voters in
each polling station should not exceed 1,500 voters has been implemented
(article 35.3).
11.
The code provides for permanent voters’ lists. In general, it
makes important and valuable provisions for the annual updating of the
permanent voters’ lists. If properly implemented, this should help to ensure
that voters’ lists are accurate for elections and referendums and that any
errors or omissions may be corrected in time. The code does not set out
explicit obligations for the precinct election commission to verify the
accuracy of the information provided by the local authorities (the latter bear
responsibility for accuracy of information (article 46.15). However, it is the
task of the precinct election commission to amend the list as per article
37.1.2.
12.
Voters’ lists will be posted on public display for 30 days
(articles 48.1 and 46.1) until 35 days prior to election day; after this date
new voters can be added to the list only upon court decision.
13.
All citizens who have active suffrage shall be included in the
voters’ lists, according to their residence (at least 6 months out of 12 prior
to announcement of the elections). It is noteworthy that any voter can warn the
precinct election commission about mistakes or errors in the lists, not
necessarily related to him/herself, but to any other voter. This will allow
political parties to actively participate in the amendment of the voters’ lists
and in the improvement of their accuracy.
14.
The code makes comprehensive provision for all aspects of the
election campaign, including rules on equal access to the mass media and
prohibitions on its abuse and reasonably detailed regulation on campaign
finance. As in other areas, the final text of the code has been amended on a
number of points to take into account recommendations on earlier drafts.
15.
The repeated recommendation that the expression
“Notwithstanding the right of freedom of expression” should be added before
“the following have the right to conduct...” in the listing of subjects
entitled to conduct pre-election campaign (article 74.1) has not been heeded.
16.
Article 74.1 of the code omits authorised representatives,
initiative group of voters, and party agents from the list of persons entitled
to campaign. These groups of persons, who normally take an active part in the
pre-election campaign, should be included in the code.
17.
The electoral code imposes important requirements on mass
media to provide equal opportunities for all election participants and
prohibits the State media from engaging in partisan reporting. Most
recommendations have been implemented. Among those that have not been
implemented are:
i)
Private media should be obliged to respect equality when
information about candidates is displayed;
ii)
the recommendation that the words “Subject to the freedom of
expression” should be included in article 88.1. It is important since the terms
“citizens’ honour and dignity” are imprecise and can be abused. Indeed, who is
to decide whether a particular claim by one candidate undermines the prestige
of another? (article 88.1 and 88.6).
18.
Candidates and political parties will be allowed to use only
funds from the “election funds” specially created and regulated for their
campaign. Article 95 provides for openness in spending of election funds.
19.
The finance provisions in the code make very ambitious
provisions for reporting and controlling expenditure during and after election
and referendum campaigns. Some of the rules may be too ambitious, such as the
requirement to submit three separate campaign finance reports (article 94.3).
Similarly the requirement that banks report on campaign expenditure at least
once a week and even more frequently just before the election is probably too
onerous (article 95.2: this article should in any event indicate precisely what
information must be submitted), as is the amount of information required to be
submitted about legal entity donors to campaign funds (article 95.4), which
will impose a very cumbersome burden on candidates and parties.
20.
The formation of electoral commissions has proved to be the
most contentious and problematic area in the drafting of the new code. The Law
on the Central Election Commission (CEC), which was repealed with the adoption
of the new code, gave equal seats on the 18-member CEC to the majority party in
parliament, the minority parties and “independent” deputies. Recent election
experience suggests that, at the very least, there is a strong perception that
the commission members appointed by theoretically “independent” sections of
Parliament or some small parties tend, in reality, to vote in line with the
governing party. This seemed to give the majority party in Parliament an
exceptionally strong influence over not only the CEC but all subordinate
commissions.
21.
The drafters of the code failed to resolve the most difficult
problem to emerge from the drafting process, namely the composition of the
electoral commissions. In consequence, the finalised code effectively preserves
the pre-existing arrangements which were the source of acute criticism in the
past. However, under transitional provisions, which will operate until 2005 and
cover the next presidential and parliamentary elections, a solution, close to
the model suggested by the two organisations, was eventually adopted. In
particular, a greater role in nominating members of the electoral commissions
has been given to some opposition parties not represented in Parliament.
22.
However, the adopted formula appears to give complete control
over the election administration by the parliamentary majority, unlike the
“draft model”[3]
suggested by the two organisations. Whether there will be an effective
counterbalance to the otherwise dominant influence of the majority parliamentary
party remains to be seen. On other issues, including the rules on
decision-making and the qualifications required of CEC members, the
transitional provisions closely reflect a number of recommendations set out in
a draft model. On the issue of the composition of electoral commissions, it
seems clear that the code itself will need revising before the relevant
provisions come into force in 2005.
23.
The Venice Commission
and the OSCE-ODIHR put forward a series of suggestions by way of a possible
compromise between the majority party and the opposition. These recommendations
proceeded on the basis that real progress could only be made on the basis of
political consensus. The draft model was advanced as a transitional solution in
the event that the majority and opposition were unable to reach long-term
agreement. It was discussed in the Milli Majlis and included the following key
proposals, each of which was explored in some detail:
i)
a broader role in nominating CEC members for political parties
that had not secured seats in the Milli Majlis;
ii)
a requirement for two-thirds attendance at a session of the
CEC to make it quorate; and
iii)
a requirement that CEC decisions are taken by at least two
thirds of participants.
24.
The two organisations have also recommended that at least half
the CEC members should have a higher education in law. Moreover, a role should
be found in the CEC for judges, or at least former judges, recognising that
there might be a constitutional obstacle to acting judges serving within
electoral commissions.
25.
As previously stated, the provisions in the code itself on the
formation of the CEC and subordinate electoral commissions do not substantially
depart from the pre-existing arrangements. However, those provisions will not
enter into force until after the election of the next Parliament in 2005.
26.
In the interim, transitional provisions are set out in the Law of the Azerbaijan Republic On Approval
and Entry into Force of the Electoral code of the Azerbaijan Republic. It
brings the code into effect and contains at the same time the rules on the
composition of the election commissions until 2005.
27.
The transitional provisions provide a number of significant
changes to the existing system.
i)
The CEC comprises of 15 members. In the formula for their
nomination a distinction is made between the results of voting at the last
parliamentary election in single-mandate and multi-mandate constituencies.
There are effectively four nominating groups.
ii)
Six members represent the party which secured the most seats
in the multi-mandate election for parliament (the majority party); three
represent the parties which secured seats in the multi-mandate election and are
in the minority in parliament; three represent the deputies elected from single
mandate constituencies whose parties failed to gain seats in the multi-mandate
election and ‘independent’ deputies elected in single-mandate constituencies;
three represent the four most successful parties that participated in the
multi-mandate election but failed to secure seats.
iii)
Each of the four nominating groups must nominate as a
candidate either an ex-judge or a representative from a public organisation
with a specialisation in democracy and human rights.
iv)
At least half of the CEC nominees must be lawyers.
v)
The chairman and deputy chairman of the CEC represent the
majority party. One secretary represents the minority parties; a second represents
the four parties that secured the most votes but failed to secure seats in
parliament.
vi)
A meeting of the CEC is quorate if 10 members (i.e. two
thirds) attend. The formula for decision making indicates that at least two
thirds of the votes of members present are required for a decision to be
adopted.
vii)
The rules on the appointment of the constituency and precinct
electoral commissions follow similar principles.
28.
The proposals in the draft model on the rules of decision
making, the use of former judges and the qualifications required of CEC
members, have all been incorporated.
29.
Nevertheless, the draft model was only partly respected. The
weakness of this adopted Law, in comparison with the draft model, is that the
parliamentary majority can always obtain a de
facto majority of members if one considers that:
i)
Significantly, the number of CEC members was reduced from 16
to 15. Although this change may seem insignificant, it is indeed crucial since
it removes the blocking minority for the opposition parties;
ii)
the representatives of opposition, not represented in the
Milli Majlis, have 3 instead of 4 members foreseen in the CEC draft model;
iii)
moreover, 3 members represent both independent MPs and parties
which are represented in the Milli Majlis only by MPs elected in single-mandate
constituencies which tend to vote in line with the parliamentary majority.
30.
It should be noted, however, that the drafters of the code
were confronted with a dilemma:
i)
the possibility for the CEC opposition members to obstruct the
CEC activities;
ii)
the possibility of permanent control of the CEC decision
making process by the parliamentary majority.
31.
There is no ideal model that could force members to work in a
consensual manner if both the majority and the minority are determined to use
their voting power to pursue purely
partisan interests. The two organisations had proposed to solve the
described dilemma by composing the CEC in a way which would have given the
opposition parties a significant position in the decision making process. At
the same time, it would have ensured the continuing functioning of the CEC by a
fallback mechanism that would have lifted potential blockage. The Parliament
decided not to follow this suggestion and instead opted for a model which
combines an almost assured majority with a mechanism to lower the majority
threshold if decisions are urgent.
32.
The question of the composition of the Central Election
Commission has a dimension of electoral legitimacy and a more strictly legal
dimension. The dimension of electoral legitimacy consists, in the general
interest of Azerbaijan and the international community, that the electoral
system and its administration are considered fair and legitimate by all
political actors. This is particularly important in Azerbaijan due to the past
experiences. The two organisations have therefore constantly insisted on the
importance of finding a solution which would be based on the consensus of all
significant political actors. Unfortunately, it seems that it proved impossible
to find such a consensual solution. However, the fact that the result is
unsatisfactory from the perspective of electoral legitimacy does not mean it is
unacceptable from a strictly legal point of view. However it may be acceptable
from a formal legal point of view if sufficient other safeguards. These need to
ensure the independence from the executive branch, political impartiality of the Central Election Commission (and
the other election commissions), and the transparency of its activities. This,
in turn, mainly depends on the rules on the rights of observers and the appeals
system (see below). Therefore, it will be fundamental to ensure good
implementation of all provisions of the code, both by election commissioners,
proxies and observers. In a democratic country, the legislature has a rather
broad discretion on how to structure the electoral institutions. As the Venice
Commission recommends in the Code of Good Practice in Electoral Matters:
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…
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.
…
80. There are many ways of making decisions ”by electoral commissions”.
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.
33.
According to the present rules, decisions are in principle
taken by 2/3 majority, but exceptions (simple majority) are possible if a
decision has to be taken before a certain deadline. This fallback mechanism
should only be used in very exceptional circumstances. Otherwise the necessary
public confidence will be understandably destroyed.
34.
The Venice Commission and the OSCE-ODIHR regrets that all
attempts of political dialogue on the electoral code failed to yield results
and that the composition of election commissions does not enjoy broad political
support. A large consensus on this issue would have increased confidence in the
electoral process.
35.
It is of concern that the code simply reflects the
pre-existing arrangements according to which the CEC shall comprise 18 members,
six nominated by the majority party in parliament, six by the minority parties,
and six by the so-called “independent” deputies in the Milli Majlis. In
addition, recommendations implemented in the transitional provisions are not
reflected in the code: for instance, there is no requirement that any members have
a legal background nor is any role envisaged for former members of the
judiciary. Moreover, the definition of the minority is omitted, thus leaving
room for further disagreement. Unless
there is a substantial change in the political climate between now and 2005,
the implementation of this part of the code is likely to represent a
significant step backwards.
36.
The principle of independence of election commissions from
State bodies is stated in the code and their decisions are binding for all
entities within the territory. Additionally, decisions of superior election
commissions are mandatory for lower commissions. These are positive
developments.
37.
In numerous areas the code includes provisions to enhance
transparency in the conduct of elections.
38.
The rules on who may act as a domestic observer are set out in
the code itself (rather than CEC regulations) and appear to be remarkably broad
(article 40.6-40.7).
39.
The rules and practice concerning election observation are
crucial for the success of elections, particularly if the issue of the election
commissions has not been solved on a consensual basis. It appears that the
rules concerning election observation are now generally satisfactory with one
major exception. Although the code now foresees the right of non-governmental
organisations to accredit observers (article 40.5), public associations,
including those receiving foreign State funding, continue to be prevented from
observing the electoral process. Although this prohibition is not contained in
the electoral code itself but rather in article 2.4 of the “Law on Public
Unions and Foundations”, it is a rule which substantially affects (and
modifies) the electoral code. The two organisations are seriously concerned by
this shortcoming that breaches paragraph 8 related to domestic observation and
paragraph 10.4 related to
civic organisations contained in the 1990 OSCE Copenhagen Document. A provision
should be added to allow all non-governmental organisations (NGOs),
irrespective of their funding, to observe elections. Alternatively, this
prohibition should be removed from the NGO Law.
40.
Despite the fact that
the prohibition of foreign funding of local NGOs does not seem to violate the
Constitution of Azerbaijan,
the objections against such a rule stem from the opinion that comprehensive
observation by domestic and international observers promotes transparency and
increases public confidence in the electoral process. Funds are needed to
organise a comprehensive domestic election observation effort and these also
seem to be lacking for a number of capable, serious NGOs in Azerbaijan.
Therefore, foreign funding should be permitted, ensuring at the same time that
they not be abused for other purposes, in a particular party or campaign
financing. If this prohibition on funding is taken into consideration alongside
the rules on the composition of the Central Election Commission, it appears
that the code lacks important safeguards to ensure the necessary public
confidence in the regularity and integrity of the electoral process.
41.
Of particular importance are the wide-ranging rights of
candidates, party agents and their representatives, together with journalists
and observers, to attend electoral commission meetings, access election
documents, obtain copies of decisions, and observe the voting and counting
process (Article 40). They are also allowed to observe the work of election
commissions on election day and to include their observations on the
commissions’ protocols. Finally, they can observe the transfer of election
documents from the constituency election commissions to the CEC. The code,
however is unclear as to whether observers can observe the printing of ballot
papers and protocols. Significantly, no provision was included on the
possibility to observe distribution of ballots papers.
42.
Over the months preceding the adoption of the new code, a
range of other measures to enhance transparency were discussed. It is
noteworthy that many of these measures have now been incorporated into the code
and little has been overlooked. These changes include the following:
i)
The safeguards related to the use of the mobile ballot have
been reinforced and should therefore limit possible abuse and fraud.
ii)
Ballot paper envelopes will be used as a means of enhancing
ballot security and secrecy (article 102).
iii)
Ballot papers will be sequentially numbered, which will also
enhance ballot security (article 99.3).
iv)
The use of transparent ballot boxes has been a welcome
innovation and, despite having been removed from subsequent drafts, was
eventually put in the code (article 103.2).
v)
Precinct results are required to be published within two days
of the election (article 109.3) as a summary table to the constituency
protocol. This will allow observers and other interested parties to
cross-reference protocols issued at the precinct with the results relied upon
by the constituency commission. It would be preferable, however, if a summary
table were produced immediately, at the same time the constituency protocol is
drawn up, and issued to observers and other interested parties at that time. It
is difficult to see any real objection to such a practice, which would enhance
public confidence in the electoral process. The same considerations apply to
the use of summary tables at the CEC.
vi)
Provisions on transparency have been strengthened regarding
the issuance of protocols to interested parties and the mandatory display of
election protocols at all election commissions’ levels.
vii)
It is mandatory to post precinct election commissions’
protocols on the notice board of the constituency election commissions.
viii)
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 that should prevent
undue interference in election day proceedings.
43.
Nevertheless, it is regrettable that the provision on inking
voters’ finger (article 104.6) was not reintroduced in the finalised code. This
anti-fraud measure is effective solution to avoid multiple voting, in a country
where the accuracy of voter registers is still of concern. This provision was introduced
in one of the drafts and subsequently removed without a convincing explanation.
44.
With regard to transparency during the post-election-day
stage, the code incorporated recommendations from the two organisations:
i)
the code now provides clearer procedures for delivery to and
receipt of election protocols and other documents from lower level commissions
by the Central Election Commission and constituency election commissions;
ii)
the constituency election commissions will have to publish
detailed preliminary results for each polling station (article 109.3);
iii)
concerning the full publication of the results and their
breakdown, the publication of the precinct breakdown was suppressed and later
reintroduced in articles 107.7, 109.3 and 109.5. The recommendation that
“Constituency election commissions must be required to issue certified copies
of protocols with a full breakdown of results for each precinct within the
constituency”, however, is no longer clearly formulated.
45.
Again, a number of recommendations arising from earlier
draftings of the code have been implemented. For instance, the code no longer
envisages negative voting (voting against candidates or parties). It also
includes comprehensive measures to facilitate special voting (voting outside
the polling station using the mobile ballot box, voting in a different area for
work or other reasons and the like) which include safeguards to enhance
transparency and preserve the ballot security.
46.
In an earlier draft of the code, it was envisaged that
representatives of the local executive authority might be permitted to attend
the polling station. This provision, which posed an obvious risk of
interference in the electoral process, did not remain in the final text
(article 104.14).
47.
Another feature of a previous draft was that the precinct
election commission, having completed its work, should be able to reconstitute
itself on its own motion and issue a repeat protocol if it believed that an
error had occurred. This was a highly unusual provision raising obvious
possibilities for abuse, not least as observers would be unlikely to be present
at such a further session. Fortunately this provision has also been omitted
from the final text of the code.
48.
It is highly disputable whether all votes cast at a polling
station should be declared invalid merely because an elector has omitted to
sign the voters’ list. Such step is too drastic and does not apply the
principle of proportionality (article 106.2).
49.
It is difficult to consider the results of an election as
acceptable if the election results were cancelled in 40% of the precincts due
to violations. This provision applies to presidential, parliamentary, municipal
elections, and referenda (articles 204.1.1; 170.2.2; 240.2.1; and 139.2.1).
50.
While provisions guarantying the citizens’ right to challenge
decisions of the election commissions related to specific important stages of
the electoral process, such as nomination and registration of candidates,
registration of voters, etc., were previously dispersed throughout the code,
they have now been unified in a single article (article 113).
51.
The complaint system shows some improvements in the sense that
as a rule, complaints are filed, only to the election commission that took the
decision (or should have done so). Nevertheless, the scheme for election
appeals and complaints in the code remains both unusual and problematic.
52.
Indeed, if citizens are dissatisfied with the act or omission
of a precinct electoral commission, they may only appeal to the constituency
commission once they have made a complaint to the precinct commission, that the
complaint has been considered and that the decision on the complaint has been
communicated (article 112.3). Equally, they can only complain to the CEC once
the constituency commission has considered and rejected the complaint. Only
then can they apply to a court (the Court of Appeal) for a remedy.
53.
The election dispute system is therefore a very time-consuming
scheme which is likely to deprive voters, candidates and other interested
parties of an effective remedy. The code should ensure direct access to a court
to ensure effective and prompt protection of electoral rights.
54.
In addition, when the decision “can cause criminal liability”
then complaints are filed with relevant courts or prosecutor’s office. However,
the relationship between the criminal proceeding and the necessary redress of
the electoral rights by the election commission remains unclear. Article 112.4
would suggest that the election commission reviews the complaint in parallel to
the criminal proceeding. In such a case, article 112.2 should then be
interpreted not as setting an alternative forum, but only a further venue that
is added to the election commission.
55.
The code should make it clear that, once a complaint has been
made to an electoral commission, the commission (including the CEC) must
consider the complaint. It should be clear that electoral commissions do not
have the power to refuse to consider a properly made complaint and refer it to
a court. The court considering a complaint should not only have the power to
quash the decision of an electoral commission but also to order the electoral
commission to comply with its duties under the code.
56.
Article 112.1 lists all subjects who can file a complaint. The
list is very broad but it is not at all clear if a subject can file a complaint
only related to his own interest or to the overall regularity of the process.
The presence in the list of observers and election commissions would suggest
that any complaint can be filed by any of the listed subjects. In such case,
there should be no need for such a long list where the term “voters”
encompasses most of the others subjects. Under Article 112.1 the deadline for
submitting complaints is reduced from seven to three days from the date of the
act or omission complained of (or notification thereof). This may prove to
establish a too stringent a timescale, particularly where a candidate or
political party is investigating a number of reported violations of voters’ rights
from different parts of the country.
57.
Under article 139.1, referendums on amendments to the
Constitution or the adoption of a new Constitution are invalid if less than 25%
of registered voters have participated (note reference to article 153 of the
Constitution in the translation provided: this should probably be to article
152). This appears to be a remarkably low turnout requirement for a matter as
fundamental as adopting a new constitution or amending the existing one: in
practice, such changes could be made with the approval of only 12.5% of
registered voters.
Early Elections for the President of the
Republic
58.
On 15 August 2003, the Constitutional Court considered a
request of the General Prosecutor’s Office related to the interpretation of
article 179.1 of the code. It stipulates that if the incumbent dies or looses
the capacity to fulfil his/her obligations the election process should stop and
early elections should be conducted within three months.
59.
The Constitutional Court declared the controversial article
constitutional. The Court's official interpretation stated that if
the acting President was unable to fulfil his/her duties less than 90 days
before election day, the election process must not be discontinued. Their main
argument was that the aim of an early election was to shorten the
period during which the country is without a Head of State as much as possible.
60.
The adopted election code provides a comprehensive framework
for the conduct of elections and referenda which in most respects appears to
meet international standards and best practice. Naturally, this does nothing to
detract from the need to ensure proper implementation, a need which has been
acutely felt in recent years.
61.
Several months of cooperation between the Azeri authorities
and the Venice Commission, jointly with the OSCE-ODIHR, have proven invaluable
and resulted in the submission of a much improved electoral code. However, some
shortcomings still persist and the code should be further amended after the
presidential elections.
62.
The OSCE-ODIHR and the Venice Commission stand ready to
continue the dialogue on the election code and to assist the authorities of the
Republic of Azerbaijan on further reforms through diverse forms of assistance.
The forthcoming election will be the first conducted under the new improved
legislative framework. They will be a test for the new election legislation the
implementation of which will undergo close international scrutiny.
