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Strasbourg, 20 March 2003
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CDL-AD (2003) 3
Or. Engl.
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Opinion no. 214/2002
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MAIN
RECOMMENDATIONS FOR AMENDMENTS
TO THE DRAFT ELECTORAL CODE
OF AZERBAIJAN
OF
THE EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION, COUNCIL OF EUROPE)
Adopted by the Venice
Commission
at its 54th plenary
session
(Venice, 14-15 March 2003)
AND
THE OFFICE FOR DEMOCRATIC INSTITUTIONS
AND HUMAN RIGHTS (ODIHR) OF THE OSCE
Preliminary remarks
The
Venice Commission and the OSCE/ODIHR adopted two joint assessments (CDL (2002) 131 & CDL-AD (2002) 035) on two different versions of the draft Election
Code of Azerbaijan.[1]
These two assessments were submitted to the authorities of Azerbaijan for their
consideration. A number of recommendations have been implemented but further
improvements are needed to ensure that the Election Code provides an adequate,
consistent and comprehensive framework for democratic elections in line with
international standard and Azeri legislation.
In the hope of providing
further assistance in the drafting process, the Venice Commission and the
OSCE/ODIHR prepared a list of fundamental recommendations for a meeting on the
draft Election Code on 13-14 February in Strasbourg.
Following
a further meeting with the Azeri drafters of the Code on 26-27 February 2003
the situation concerning the implementation of these fundamental
recommendations can be summed up a follows:
I.- Fundamental
recommendations that are being implemented according to the information
provided by the Presidential Administration
·
Registration of candidates / Signatures:
o
the number of signatures that a candidate can submit to
support his candidature is now unlimited;
o
instead of verifying a sample of signatures, the
entirety of signatures will be checked until the number of valid signatures is
reached;
o
during the registration process, candidates will have
the chance to correct minor errors made in submission documents;
o
a voter will be able to sign a petition sheet for more
than one candidate for parliamentary elections;
o
the list of registered candidates should be published.
·
Transparency measures:
o
transparent ballot boxes will be reintroduced in the
draft Code;
o
a provision will be introduced on the publication of
summarization tables with detailed results per polling station at constituency
and central levels within a short deadline.
·
Other issues:
o
the deposit will be reimbursed if the candidate obtains
at least 3% of valid votes;
o
all observers will be permitted to observe the entire
pre-electoral meetings. If they are with too many, they will be chosen by
lottery;
o
the Precinct Election Commission’s Chairman must notify
observers when commissioners visit voters with the mobile ballot box;
o
each observer will be provided with one copy of
protocols free of charge. Additional copies will be charged;
o
election protocols should be transmitted to superior
election commissions by the Chairman accompanied by two commissioners
representing different political interests.
II.- Fundamental
recommendations that remain to be implemented according to the information
provided by the Presidential Administration
·
Election commissions:
o
the presence of judges in election commissions could be
in contradiction with one constitutional provision. As international experts,
we are not able to carry out such checks; it is the role of the Constitutional
Court or of the Parliament. The Code of good practice in electoral matters
provides recommendations about the organisation of elections by an impartial
body[4];
o
the composition of all election commissions should be
revised in order to avoid the risk of undue and excessive influence by a single
political interest;
o
the solution can only be found with a broad consensus.
We encourage a political dialogue between the majority and opposition parties
to obtain a consensual solution to this issue.
And we support any proposals that support this consensus;
o
senior electoral commission personnel should be
required to have appropriate levels of relevant experience and professional
qualifications;
o
precinct election commissions should be formed earlier
during the pre-electoral process;
o
transitory provisions after the final vote and the
first execution of the Election Code. The transitory provisions on formation
and functioning of the Central Election Commission should be added on the Code.
Indeed it is important to have an efficient Central Election Commission in the
pre-electoral process for the next elections.
·
Inking of fingers: the introduction of
transparent ballot boxes is welcomed, but the inking of fingers should also be
reintroduced also added.
·
Observers from NGOs receiving foreign funding:
such organisations should also have the possibility to observe the electoral
process, as well as all other observers.
·
Questions of transparency:
o
the Code should provide clear procedures for delivery
to and receipt by the Central Election Commission and constituency election
commissions of election protocols and other documents from lower level
commissions;
o
the constituency election commissions should publish
detailed preliminary results for each polling station before the detailed
publication of final results;
o
it is also important to ensure periodic announcements
of the turnout during election day.
·
Simplification of the structure of the Code:
much progress has been made on this matter, but the draft Code is still a
cumbersome document. It should be simplified and shortened by removing
repetitive material and provisions that add nothing or that could be
transferred from the Special Part –where we can find repetitive provisions for
each type of election– to the General Part.
III.- Other
important points that have not been implemented
·
Suffrage and voters’ lists: the number of
registered voters in each polling station should not exceed 1,500 voters.
·
Registration of candidates / Signatures:
cancellation of registration should be a sanction of last resort after a
serious, repeated and/or intentional breach of the Code.
·
Rules on transmission of certified copies of
protocols free of charge to observers should be stipulated more clearly.
·
Final results: the deadline on publication of
final results should be shortened.
However, final results should not be announced until all complaints have
been adjudicated.
·
Principle of proportionality: sanctions for
violations of norms and the restriction on the freedom of expression should be
proportionate. Several provisions were modified but again there are provisions
establishing overtly severe sanctions.
·
Claims and appeals: the Draft Election Code
should clearly determine which entity is the most competent between the
election commission and the court. This
will avoid “forum shopping” a situation where a complaint could be lodged
simultaneously with the superior election commission and with the courts and
then using the ruling that suits his/her interest best.
IV.- Other points
that have to be implemented
Finally, regarding the other
issues, the Azeri authorities are invited to refer to the last joint assessment
on the draft Election Code (CDL-AD (2002) 035) for other technical
recommendations, which would have not been implemented from previous versions.
Conclusions
The Venice Commission and
OSCE/ODIHR urge the authorities to implement these recommendations as a matter
of priority, in particular to find a compromise solution for the formation of
the election administration that could enjoy broad political consensus. They
also invite the authorities not to disregard the other important
recommendations contained in the two joint assessments.
The Venice
Commission, and more widely the Council of Europe, together with OSCE/ODIHR is
ready to provide further legal assistance for Azerbaijan, one of the member
states of the Council of Europe, together with the other organisations and
relevant forces.
