EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
REPORT
ON THE
COMPATIBILITY OF REMOTE VOTING
AND ELECTRONIC VOTING WITH THE STANDARDS
OF THE COUNCIL
OF EUROPE
Adopted by the
Venice Commission
at its 58th Plenary
Session
(Venice, 12-13 March
2004)
on the basis of a contribution
by
Mr Christoph
GRABENWARTER (substitute member, Austria)
Table of contents
Pages
I. Introduction................................................................................................................... 3
II. The
standards of the Council of Europe
documents................................................... 3
1. Article
3 of Protocol 1 to the European Convention on Human Rights................................... 3
2. The Venice Commission’s Code of Good Practice in Electoral
Matters................................ 5
III. Remote
voting from a comparative perspective......................................................... 6
1. States
which do not permit remote voting............................................................................. 7
2. States
which permit remote voting in a supervised environment............................................. 7
3. States
which permit remote voting in a non-supervised environment...................................... 8
3.1.... Remote
voting abroad......................................................................................................... 8
3.2.... Non-supervised
remote voting without (local) restriction...................................................... 9
4....... Summary.......................................................................................................................... 10
IV...... The compatibility of e-enabled
voting with Article 3 of Protocol 1 and
........... with
the Venice Commission’s Code of Good Practice in
Electoral Matters........... 11
1....... Compatibility
with the Venice Commission’s Code of Good Practice in
......... Electoral
Matters.............................................................................................................. 11
2....... Compatibility
with Article 3 of Protocol 1.......................................................................... 12
V........ Conclusion.................................................................................................................... 14
I.......... Introduction
1. At their 826th meeting (5 February
2003), the Committee of Ministers of the Council of Europe approved the specific
terms of reference of the
Multidisciplinary Ad Hoc Group of Specialists on legal, operational and
technical standards for e-enabled voting (IP1-S-EE), in the framework of Integrated Project 1 “Making Democratic
Institutions work” . The task of the
Group is to develop an intergovernmentally agreed set of standards for
e-enabled voting. The legal standards are intended to apply existing Council of
Europe principles, and other international
instruments in the field of elections, to the circumstances of e-enabled
voting. The Venice Commission, the Parliamentary
Assembly and the Congress of Local and Regional Authorities of the Council of
Europe, as well as the Council for Democratic Elections, are observers in this
body. At
the second meeting of the Multidisciplinary Ad Hoc Group of Specialists on
legal, operational and technical standards for e-enabled voting (IP1-S-EE) held
on (18 and 19 September 2003), the Venice Commission expressed its willingness
to render an opinion on remote voting, taking into account the traditions of
remote voting in member States and current developments in e-enabled voting.
2. Twenty-nine countries replied to the
questionnaire. The replies will be analysed below (see point III of this
report).
3. This report was adopted by the Council for
Democratic Elections at its 8th meeting (11 March 2004)
and by the Venice Commission at its 58th session (12-13 March 2004).
II. The standards of the
Council of Europe documents
1. Article 3 of Protocol 1 to the Convention
4.
Under Article 3 of Protocol 1 to the European Convention on Human Rights
“The High Contracting Parties undertake to hold free elections at reasonable
intervals by secret ballot, under conditions which will ensure the free
expression of the opinion of the people in the choice of the legislature.”
5.
This obligation, together with the guarantee of
freedom of expression under Article 10 and of freedom of association under
Article 11 of the ECHR, are held to be the main guarantees of a
democratic system. Without the last two freedoms, the right to free elections
would be stripped of all effective meaning.
6.
According to the established case-law of the European Court of Human
Rights (hereafter, “ECtHR” or “the Court”), Article 3 of Protocol 1 refers not
only to the positive obligation on Contracting States to organise free
elections using secret ballot, but also guarantees the individual right to vote
and to stand for election, although this is not explicitly stated in
Article 3. In the Court’s opinion, universal and equal suffrage is
included in this right (ECtHR, judgment of 2 March 1987, Mathieu-Mohin and
Clerfayt, series A 113, § 54). As holders of subjective rights,
individuals may draw on this provision directly.
7.
There are several aspects to the content of Article 3 of Protocol
1: its personal and substantive scope, the “legislature” and universal
suffrage. In general, every person has the right to rely on the rights
guaranteed by Article 3: nonetheless, the majority of Contracting States grant
the right to vote only to nationals of the State in question. Article 3 refers
to the “people” without clarifying the content of this term. However, in line
with European constitutional tradition, “the people” is made up only of
citizens of the State. The Court has specified that the scope of Article 3 of
Protocol 1 extends to equal treatment for all citizens (ECtHR, judgment of 2
March 1987, Mathieu-Mohin and Clerfayt, series A 113, §54).
8.
In addition, Article 3 guarantees the individual right to vote and to
stand for election, in addition to free and secret suffrage. Elections should
be organised in such as way as to ensure free electoral choice. They should
also take place in circumstances that ensure the secrecy of the ballot.
9.
All the same, the Court has so far failed to clarify whether the
guarantees of Article 3 also apply to the rights of political parties, since
these are not expressly mentioned in the ECHR. They may, however, cite the
rights and freedoms guaranteed to associations in the meaning of Article 11 of
the ECHR (ECtHR, judgment of 30 January 1998, Unified Communist Party of
Turkey et al., RJD 1998‑I, § 25). Given their roles in a
democratic and pluralist society, it would be logical for political parties to
be able to rely also on the right to be elected under Article 3 of Protocol 1.
10.
In giving tangible form to the ECHR’s preamble concerning “an effective
political democracy” in the High Contracting Parties, Article 3 of Protocol
1guarantees “free elections” in particular, without obliging the contracting
States to establish a certain political democracy. However, the ECHR obliges
States to set up a “legislature” which is directly elected by the people. The
ECHR does not define the concept of “legislature” explicitly, but in any case
it does include national parliaments. The concept must be interpreted on the
basis of the constitutional structure of the State in question (ECtHR, judgment
of 2 March 1987, Mathieu-Mohin and Clerfayt, series A 113, §53). In
federal States such as Germany,Austria, Belgium
or Switzerland,the parliaments of the federated States (the Länder, regions and communities or
cantons) are also considered as “legislatures” in the sense of Article 3
(European Commission for Human Rights, decision of 11 September 1995, Timke,
DR 82‑A, pp. 158ff). In contrast, local authorities’ deliberative
assemblies are not considered legislators, since they are endowed only with
statutory powers (European Commission of Human Rights, decision of 5 July 1985,
Booth-Clibborn et al., DR 43, pp. 236, 247 and onward). Equally, the
scope of Article 3 does not extent to elections for the Head of State or
participation in referendums (ECtHR, decision of 7 September 1999, Hilbe,
RJD 1999‑VI).
11.
The rights arising from Article 3 of Protocol 1are not
absolute, since they are subject to implicit limitations. The
contracting States enjoy a wide margin of discretion in deciding the conditions
for universal suffrage and the electoral system. However, these conditions and
limitations should serve a legitimate purpose and should not be
disproportionate (ECtHR, judgment of 2 March 1987, Mathieu-Mohin and
Clerfayt, series A 113, § 52).
2. The
Venice Commission’s Code of Good Practice in
Electoral Matters
12.
The “Code of Good Practice in Electoral Matters” (hereafter, “the Code”)
is a second source which serves to establish criteria. It is in two parts:
firstly, the “guidelines” which are based on the principles of the European
electoral heritage adopted by the Council for Democratic Elections on 3 July
2002 and by the Venice Commission on 5‑6 July 2002, and, secondly, the
“explanatory report” which expands on, defines and clarifies the principles set
out in the guidelines, integrating, as necessary, recommendations on detailed
points.
13.
The Code defines the “European electoral heritage” through two aspects:
the principles of the European electoral heritage (the “hard core”) and the
conditions for implementation of these principles. The principles of the European
electoral heritage are universal, equal, free, secret and direct suffrage, as
well as the organisation of elections at regular intervals. The conditions in
which they are implemented concern respect for fundamental rights, regulatory
levels and stability of electoral law, procedural guarantees and the electoral
system.
14.
The “hard core” of the European electoral heritage is primarily composed
of international standards. At universal level, this refers to Article 21 of
the Universal Declaration of Human Rights and, in particular, Article 25,
section b. of the International Covenant on Civil and Political Rights, which
expressly provides for all of these principles except direct suffrage, which is
the implicit outcome. At European level, the common rule is Article 3 of
Protocol 1, which expressly sets out the right to regular elections with free
and secret suffrage.
15. According to guideline
I.3.2. of the Code of Good Practice in
Electoral Matters, postal voting should be allowed only where the postal
service is safe and reliable. It may be confined to people in hospital,
prisoners, persons of reduced mobility or electors
residing abroad. Fraud and intimidation must not be possible.
16.
Paragraph 38 of the explanatory report deals with
postal voting. According to the explanatory report, postal voting is
frequently possible throughout the western world, although the arrangements
differ widely from one country to another. Thus, postal voting may be very
widely practiced in one country, and forbidden in another due to the likelihood
of fraud. It may only be permitted where the postal service is safe – in other
words, protected from deliberate manipulation – and reliable, in that it operates
correctly. Proxy voting is permissible only if subject to very strict rules,
again to avoid fraud; the number of proxies held by any one elector must be
limited.
17.
These practices should not be encouraged in the new democracies given
the problems with their postal service, in addition to all the other
difficulties inherent in this kind of voting, including the heightened risk of
“family voting”. Subject to certain
precautions, however, postal voting can be used to enable hospital patients,
persons in custody, persons with restricted mobility and electors
resident abroad to vote, in so far as there is no risk of fraud or
intimidation. This would dispense with the need for a mobile ballot box, which
often causes problems and risks of fraud. Postal voting would take place under
a special procedure a few days before the election.
18.
As for electronic voting, the Code states in section I.3.2. that this should only be used if it is safe and reliable. In
particular, electors must be able to obtain confirmation of their votes and
correct them, if necessary, respecting secret suffrage. The system’s
transparency must be guaranteed.
19.
According to paragraph 42 of the explanatory report, several countries
already use mechanical and electronic voting methods or are preparing to do so.
These techniques present a clear advantage when several elections are held
simultaneously, even though certain precautions are needed to minimise the risk
of fraud, for example by enabling the voter to check his or her vote
immediately after casting it. Clearly, it is important to ensure that ballot
papers are designed in such a way as to avoid confusion. In order to facilitate
verification and a recount of votes in the event of an appeal, it may also be
provided that a machine could print votes onto ballot papers; these would be
placed in a sealed container where they cannot be viewed. There should also be some kind of device for
mixing the ballot papers so that if it proves necessary to open the container
for checking, papers cannot be linked to particular voters – for example, those
turning out early or late in the day.
20.
Paragraph 43 states that electronic voting methods must be secure and
reliable. They are secure if the system can withstand deliberate attack; they
are reliable if they can function on their own, irrespective of any
shortcomings in the hardware or software. Furthermore, the elector must be able
to obtain confirmation of his or her vote and, if necessary, correct it without
the secrecy of the ballot being in any way violated.
21.
Finally, the system’s transparency must be guaranteed in the sense that
it must be possible to check that it is functioning properly (§44 of the
explanatory report).
III. Remote voting from a comparative
perspective
22.
The following analysis is based on the replies to a questionnaire
prepared by the Multidisciplinary ad hoc Group of Specialists on the
legal, operational and technical standards for e-enabled voting (IP1-S-EE).
23.
Generally speaking, there are at least two different concepts of remote
voting in Council of Europe Member States:
- remote
voting in a controlled or supervised environment (e.g. voting in an embassy abroad or polling station outside a voter’s
polling district) and
- remote voting in an
“uncontrolled” or non-supervised environment, i.e. there are no election officials present (e.g. sending your
vote by mail).
24.
For the purpose of the following analysis, remote voting is defined as
voting outside the premises where voting takes place in general. In this
analysis, the two forms of remote voting will be distinguished. In the first
place remote voting is understood as voting in any designated place different
to the polling station but with supervision by election officials or other
officials with similar function. Second, remote voting means any form of voting
without supervision by election officials or other officials with similar
function. Postal voting may be an example of the second form.
25.
“Postal voting” is a (traditional) means of remote voting. It includes
the transmission of the vote cast by ordinary mail. Where the word “postal
voting” is used in domestic legal systems of Council of Europe member states
for voting in Polling stations in a post office, this is in fact a form of
remote voting in a supervised area. Therefore the term “supervised voting in
post offices” is used for this form of “postal voting”. According to
terminology used here, the use of the mobile ballot (which exists for example
in Azerbaijan)is not considered as a form of remote voting in a supervised environment.
1. States
which do not permit remote voting
26.
According to the above mentioned answers to the questionnaire, remote
voting is not authorised in the following eleven countries, both for voting
within the national territory or from abroad: Albania, Azerbaijan, Bulgaria, Croatia, Cyprus, the Czech Republic, Latvia, Moldova, Poland, San Marino and Turkey.
2. States
which permit remote voting in a supervised environment
27.
In a number of countries, remote voting in a supervised environment is
open to certain categories of voters or situations. This form of remote voting
is comparable to traditional voting in polling stations. Many countries that
allow remote voting in a non-supervised environment also provide for remote
voting in a supervised environment (see below 3.). In a number of these states
remote voting in a supervised environment is the general rule for voting in the
country, whereas exceptions exist for voting from abroad. Austria, Sweden and Estonia are examples of this legal situation.
28.
Denmark is an example of a general restriction of
remote voting in a supervised environment. Since 1980, all Danish electors have
been able to vote in advance in polling stations designated by the electoral
law, or even at home. In the latter case, the law states that two election
officials must be in attendance. Danes who are abroad may vote in advance in
all Danish diplomatic or consular missions (the “Folketing” election law, 2001,
part 8, articles 53 onwards).
29.
In Finland, in all general elections and consultative
national referendums, the voter has the possibility to vote in advance, or on
the election day, in polling stations. The advance
voting takes place in advance polling stations, which may be, for example, post
offices in the country or embassies abroad. Voting is also possible in
hospitals, prisons or at homes for disabled people.
30.
In Hungary, Hungarian citizens residing abroad now have
the opportunity to vote from abroad in the parliamentary elections, following
the amendment of the Constitution last year. The right to remote voting,
however, may only be exercised in a supervised environment, i.e. in the
premises of Hungarian embassies under the supervision of “vote counting
committees” of three individuals each.
3. States which permit remote voting in a non-supervised environment
3.1. Remote voting abroad
31.
In a third group of Council of Europe member states, remote voting in a
non-supervised environment is possible only under certain conditions. In most
of these countries, persons who are voting in another country are allowed to
this form of remote voting. This is the case in Austria, Belgium, Greece, Italy, the Netherlands, Norway and Sweden. However, the conditions and arrangements for
remote voting differ in certain respects.
32.
In Austria, for example,
votes cast abroad using an “electoral card” must be certified by an authority,
comparable to an Austrian public notary, by the Austrian official
representation in the foreign country in question, or by an adult of Austrian
nationality (§ 60 of the Federal Law on Elections to the National Council).
33.
Belgians outside the
country may vote in legislative and European elections by post, in consulates
or embassies (personally or by proxy) or in a polling station in Belgium (personally or by proxy) (Article 180ff of the
Electoral Code).
34.
In Bosnia and Herzegovina, remote voting is regulated by the Dayton
Peace Agreement and the electoral law. Citizens of Bosnia and Herzegovina resident abroad or temporarily out of the
country may vote by post (Articles 1.5 and 3.13 of the electoral law).
35.
In Estonia advance voting within the country is permitted
in special premises designated in the electoral law. Electors who are out of
the country are allowed unsupervised postal voting.
36.
The Greek constitution states
that for national elections, Greek citizens who are out of the country, may vote using postal voting (i.e. in an
unsupervised environment) or other “appropriate means”. To date, however, there
has been no specific law on this subject.
37.
Dutch citizens abroad
may vote by postal ballot for elections to the Lower Chamber of Parliament and
to the European Parliament (electoral law, sections M 13 and onwards).
38.
In Norway, all electors may vote in advance for
parliamentary and municipal elections, both at home and abroad. Advance voting
must take place no later than the last Friday before election
day. Advance voting at home takes
place in health and social welfare institutions, where the Electoral Committee
in each municipality decides and at their homes, on application by disabled
people to the Electoral Committee. Abroad advance voting takes place at
Norwegian Foreign Service missions and where the Ministry decides. In both
cases, voting in advance is not possible except in the presence of one
(sometimes two) official returning officer(s). If an elector abroad has no
possibility of going to a returning officer, he may cast his or her vote by
mail without the presence of a returning officer at the casting of the vote. In
this case, the voter is personally responsible for voting in advance at such a
time as makes it possible for his or her advance vote to reach the Electoral
Committee by 8.00 p.m. on election day (law on the Representation of the
People, 2002, § 8-2 [3]).
39.
In Sweden, voters may cast their votes in advance before
election day at any Swedish post office, and at care
facilities (hospitals, elderly homes), prisons etc. Disabled people who cannot
go to the polling station or to any other vote reception place may vote by
“messenger”, where the voter prepares their vote in secrecy in presence of a
witness and a messenger (see Swedish Elections Act). Swedish citizens abroad
may vote in advance at Swedish foreign missions or by mail. Mail voting from
abroad is regulated by a special legal act and requires special material (Mail
Voting in Certain Cases Act). The voter prepares the vote in secrecy in presence
of two witnesses. The voter and both witnesses must all sign a special outer
envelope (sealed) before the voter sends the vote in a special window envelope
to the Election Authority in Sweden.
40.
In Slovakia,a draft law on parliamentary elections was recently submitted to Parliament,
providing for remote voting from abroad. This law was scheduled to enter into
force on 1st February 2004.
41.
In some countries unsupervised remote voting from abroad is restricted
to specific types of elections and/or referenda. This is the case in Italy and in France. In Italy, postal voting abroad is permitted only for
“political electoral consultations” and “constituent referendums”. There is no
supervision of the vote (law n° 459 of 27 December 2001). In France, remote voting has been made available on an
experimental basis since 2003 in the North America
constituency, for elections to the “Higher Council of French Citizens Abroad”
(Order n° 2003-396).
3.2. Non-supervised remote voting without
(local) restriction
42. Remote voting is permitted in five countries
without restrictions, even within the national territory. These countries are Germany, Spain, the United Kingdom, Ireland and Switzerland. In Finland, there exists a limited possibility for remote
voting within the country.
43. Postal voting has long been recognised and
accepted in Germany. § 14 of the Federal Law on Elections (“Bundeswahlgesetz”) recognises
postal voting as equivalent to traditional ballots. The procedure for postal
voting is regulated in § 36 of the law in conjunction with the Federal
Electoral Code (§ 25). The electoral authorities must first provide the elector
with an “electoral card” (“Wahlschein”) which enables him or her to take
advantage of postal voting. However, there are specific requirements which need
to be met for postal voting. Firstly, the elector must lodge a special
application for a ballot paper for postal voting.
Secondly, people may also be eligible for postal voting who have transferred
their residence to another constituency and who have not yet been entered in
the electoral register of the new constituency or people who for professional
reasons or as a consequence of an illness, old age, physical disability or
another bodily constitution cannot go to the polling booth or can only go there
whilst facing difficulties which make it impossible to expect them to go to the
polls. Finally those who are eligible to vote and live outside the federal
territory and who must be entered in an electoral register upon application can
obtain the relevant ballot paper. The elector must then send his or her ballot
paper in a special envelope, ensuring that the letter reaches the electoral
commission by 6pm at the
latest on election day. On the electoral card, the elector must make
a solemn undertaking to the Chair of the constituency’s electoral commission,
stating that he or she has personally filled in the ballot slip. Under Article
156 of the German Criminal Code, anyone making a false declaration is liable to
a maximum of three years’ imprisonment or a fine.
44. In Spain, advance voting is permitted in all elections,
for electors both within and outside the country. It is possible only by means
of postal voting (implementing law 5/1985 on the general electoral system).
45. In Ireland, remote voting is admitted
at all statutory polls but is confined to persons who would have difficulties
voting in polling stations (members of the Defence Forces, of the police,
diplomats posted abroad and their spouses, persons with a physical
illness/disability, persons hindered to go to the polling stations for
professional reasons, students registered at their home address but living
elsewhere, persons employed as polling station staff).
46.
Since 1994, all Swiss citizens
are entitled to vote by post in national elections and referendums. There are
no particular preconditions for postal voting – i.e. the voter does not have to
especially request for it – merely the right to vote (Article 5, paragraph 3 of
the federal law of 17 December 1976 on political rights).
47.
In the United Kingdom, postal voting
was introduced as early as 1918 and is today available on request for all
elections (see the “Representation of the People Act 2000”). Under the current
general rules the voter must apply in advance for a postal vote. The elector
and a witness must sign a “declaration of identity”, which must be included in
the envelope containing the ballot paper. The elector then sends this to the
returning officer. Electronic voting is only permitted in local government
elections, at the request of a local authority, for the purpose of conducting
trials.
48.
In Finland, unsupervised remote voting in the
country is restricted to a specific type of referenda. As a general rule, in
all general elections and consultative national referendums the voter has the
possibility to vote in advance or on the election day
in polling stations. The advance voting takes place in advance polling
stations, which may be for example post offices in the country or embassies
abroad. Voting is also possible in hospitals, prisons or at home for disabled
people. Remote voting by mail is only permitted for participation in
consultative municipal referendums (law on the procedure for consultative
municipal referendums, 656/1990).
4. Summary
49. Based on the reports from the 30 Council of Europe member States which participated
a great majority of the group of experts for Integrated Project 1 “Making
Democratic Institutions Work”, we can define a “European standard” as follows.
First of all, a distinction has to be made between remote voting in a
supervised environment and remote voting in a non supervised environment, and
above all voting by mail. The first form of remote voting forms is a common
feature of a great majority of Council of Europe Member States. The second form
is less common and subject to many national peculiarities subject to traditions
in voting systems.
50.
Under the circumstances, one may detect two systems of remote voting. In
certain States, postal voting is only permitted for persons who are out of the
country on the date of the election. However, some member States have
arrangements for remote voting or postal voting within the national territory.
Of these, mention should be made of those systems which follow the “Nordic
model”, where remote voting prior to the election date (advance voting) is an
important element of the particular election systems.
51.
It may be concluded that remote voting constitutes a common electoral procedure
in a great number of Council of Europe member States. Remote voting in an
unsupervised environment has also become common practice in a number of Member
States in recent years. However, only few countries do not restrict the
conditions under which unsupervised remote voting is available. In a number of
countries it is restricted to votes cast abroad, in some cases even it is
explicitly subsidiary to voting in embassies etc. This diversity of
constitutional systems in Member States, demonstrates the impossibility of
identifying a single form of
(non-supervised or supervised) remote voting as the “European rule”.
Nonetheless, even non-supervised remote voting is available today in one form
or another in half of the countries considered in this analysis. And certain
measures exist to promote personal and secret suffrage. These constitute a
common European standard and are consequently contained in the Venice
Commission’s Code of Good Practice in Electoral Matters.
IV. The compatibility of e-enabled voting with Article 3 of
Protocol 1 and with the Venice
Commission’s Code of Good Practice in Electoral Matters
1. Compatibility with the VeniceCommission’s Code of Good Practice in Electoral Matters
52.
Although the Code of Good Practice in Electoral Matters is not a binding
document, it does nonetheless set out a European standard which could influence
the interpretation of treaty-based rules, in particular Article 3 of Protocol 1
(see infra 2.).
53.
Guideline I.3.2 of the Code states that electronic voting should be
accepted only if it is secure and reliable. In particular, electors must be
able to obtain confirmation of their vote and correct it if necessary, while
respecting secret suffrage. The system’s transparency must be guaranteed. Any
violation of secret suffrage should be sanctioned (guideline I.4.d.).
54.
In paragraph 42 onwards of the explanatory report, this guideline is
clarified as follows:
Although mechanical and
electronic voting methods present clear advantages when several elections are
taking place at the same time, certain precautions are needed to minimise the
risk of fraud, for example by enabling the voter to check his or her vote
immediately after casting it. In order to facilitate verification and a recount
of votes in the event of an appeal, it may also be provided that a machine
could print votes onto ballot papers; these would be placed in a sealed
container where they cannot be viewed. All the methods used should enable the
confidentiality of the ballot to be guaranteed (see explanatory report, §42).
Electronic voting methods are “secure” if the system can withstand deliberate
attack; they are “reliable” if they can function on their own, irrespective of
any shortcomings in the hardware or software (§ 43). The system’s
transparency must be guaranteed, in the sense that it must be possible to check
that it is functioning properly (§ 43).
55.
According to guideline II.1.a., democratic elections are not possible
without respect for human rights, in particular freedom of expression and of
the press, freedom of circulation inside the country, freedom of assembly and
freedom of association for political purposes, including the creation of
political parties. Restrictions of these freedoms must be in conformity with
the ECHR and, more generally, have a basis in law, be in the public interest
and comply with the principle of proportionality (cf. §60 of the explanatory report).
56.
It may be concluded that, on the one hand, the institutionalisation of
postal voting and e-enabled voting is, in principle, compatible with the Code
of Good Practice. On the other hand, their compatibility depends primarily on
adequate provision, through national legislation and legal practice, of the
prescribed conditions, taking particular account of technical and social
conditions.
2. Compatibility with Article 3 of Protocol 1
57.
Article 3 of Protocol 1 does not refer explicitly to the acceptability
of remote voting and electronic voting. Nonetheless, it should be noted that
elections which fail to respect the principle of secret suffrage cannot claim
to be “free elections”, since the voting methods mentioned may influence the
vote. One may even note that, in constitutional discussions at national level,
postal voting is discussed in connection with the principle of secret suffrage.
While postal voting’s compatibility with secret suffrage was rejected in Austriain 1982, it was found to be compatible with the German constitution as far back
as 1967. Here, it should be added that the constitutional situation at issue in
Austria and Germanywas very similar. However, in countries such as Austria
where the case-law has firmly and persistently come out against the
acceptability of remote voting within the country until such time as the
constitution specifically allows it, a similar system exists for remote voting
outside the country, and no questions are raised about such a system’s
compatibility with Article 3 of Protocol 1. Discussions are currently taking
place on the introduction of postal voting into Austrian legislation, and the
requirement of compatibility with the ECHR has not been raised.
58.
At this point, it is appropriate to note that the right to free
elections under Article 3 of Protocol 1may have an impact on the acceptability
of restrictions of the principles established by Article 3, but that it is not
incompatible with the formal introduction of remote voting.
59.
Even if one regarded this as imposing restrictions on the acceptability
of remote voting, such restrictions could not be justified by invoking the
discretion enjoyed by national legislation. In interpreting the tangible
content of the rights and obligations arising from the ECHR, it is necessary to
take account of the legal situation in the contracting States if homogeneous
rules exist among them. The European Court of Human Rights has adopted a long
line of decisions from which it emerges
that national authorities have greater scope for discretion where it is
impossible to identify a common point of view among the various member States
(cf. J. Callewaert, “Quel avenir
pour la marge d’appréciation?”, Mélanges à la mémoire de R. Ryssdal,
2001, p. 147 [151]), ECtHR,
judgment of 11 July 2002 [Grand Chamber], I v. the United Kingdom, Rec.
n° 25680/94, §§ 51 onwards; judgment of 25 November 1994, Stjerna v. Finland,
Series A, 299-B, § 29; judgment of 11 July 2002, Christine Goodwin v. the
United Kingdom, Rec. n° 28958/95, §§ 74 onwards.). Where the contracting
States share a common or homogenous standard on a question or subject related
to the ECHR’s guarantees, this tends to favour acceptance of this standard at
European level as well, in contrast to situations where no common standard
exists. Where there is no common European rule, it would be necessary to deny
that there a mandatory ECHR requirement existed at a certain level.
60.
With regard to remote voting, there is considerable diversity in the
legal systems of the Council of Europe’s member States. Of the 30 legal systems
analysed, however, 19 provided for remote voting by post in some way or
another. Although in the majority of those countries postal voting is only
available to electors who are out of the country on the election date, it is
generally accepted in these countries either that there is compatibility with
the principle of secret suffrage or, in the event of interference with this
principle, that there is at least compatibility with Article 3 of Protocol 1.
In this respect, it is of little consequence that five countries allow postal
voting without restriction even within the national territory.
61.
By contrast, there are eleven countries in which
remote voting in a non-supervised environment is not permitted. However,
this should not lead to the conclusion that its unacceptability is the
consequence of unconstitutionality, since it may also result from a political
and legal decision.
62.
In any event, the wide range of systems should also be taken into
consideration; this does not facilitate the formal introduction of a European
standard in comparable cases. Even if we assume that non-supervised postal
voting is not permitted in all other countries which have not been analysed, it
may not be concluded, given the 19 countries where non-supervised postal voting
is allowed in some form or another, that there is no such standard, which would
mean that this method of voting was incompatible with Protocol 1 to the ECHR.
63.
However, certain restrictions implicit in Article 3 of Protocol 1 must
be respected, insofar as they impose a minimum standard for protecting the
secrecy of the ballot. This minimum standard should be defined from the
perspective of comparative law, which is itself reflected in the “Code of Good
Practice in Electoral Matters”.
64.
Some appropriate measures to protect the secrecy of the ballot in
relation to postal voting should be taken as an example. Parliament must take
measures in order to ensure that the principle of secret suffrage is protected.
In this context, different systems require the elector to complete the ballot
paper individually, ensuring that he/she is not being watched, place it in the
electoral envelope and make a solemn statement to the effect that the ballot
paper was personally completed (see Federal Constitutional Court of Germany,
BVerfGE 21, 200 [205]).
65.
The Venice Commission’s Code of Good Practice in Electoral Matters
contains almost the same requirements. In accordance with
guideline I.3.2. of the Code, postal voting
should only be allowed if the postal service is safe and reliable.
66.
Based on this analysis of non-supervised postal voting, we can also
develop similar standards for e-enabled voting. Consequently, electronic voting
is neither generally permitted by human rights nor ruled out a priori. Instead,
its acceptability depends on the legal, operational and technical standards
implemented in the procedure. In order to establish specific standards, it will
be necessary to compare the precautionary measures for e-enabled voting with
those for postal voting. Insofar as a potential recommendation set out security
measures comparable with those for postal voting, e-enabled voting could be
compatible with the European standards in this area and with Article 3 of
Protocol 1.
In this context, it is necessary to ensure that the confidentiality of
electronic voting is guaranteed by measures comparable with those applicable to
postal voting, especially by preventing data manipulation, protecting anonymity
to prevent possible disclosure of the elector’s wishes, and by maintaining the
authenticity and integrity of the votes cast.
67.
The Venice Commission’s Code of Good Practice contains a clarification
that could serve as a guideline. According to the explanatory report (see
§ 42), certain precautions are needed to minimise the risk of fraud, for
example by enabling the voter to check his or her vote immediately after
casting it. It is important to ensure that ballot papers are designed in such a
way as to avoid confusion. In order to facilitate verification and a recount of
votes in the event of an appeal, it may also be provided that a machine could
print votes onto ballot papers; these would be placed in a sealed container
where they cannot be viewed. There should also be some kind of device for
mixing the ballot papers so that if it proves necessary to open the container
for checking, papers cannot be linked to particular voters – for example, those
turning out early or late in the day.
68.
In order to avoid double voting, when remote voting takes place outside
the country, it should be guaranteed that the electoral lists of citizens are
not only available to a particular party (e.g. the parties in parliament or the
Minister of Foreign Affairs’ party), in order to prevent that there are
advantages or disadvantages in the electoral campaign vis-à-vis these voters.
Furthermore, there should be safeguards against double voting (e.g. names of
the voters who use remote voting should be crossed out from the lists in a way
which prevents them from voting a second time at the polling station on
Election Day).
V. Conclusion
69.
In conclusion, remote voting is compatible with the Council of Europe’s
standards, provided that certain preventative measures are observed in the
procedures for either non-supervised postal voting or electronic voting.
70. In addition, for non-supervised e-enabled
voting, technical standards must overcome different threats to those which
exist for postal voting. This form of voting must only be accepted if it is
secure and reliable. In particular, the elector must be able to obtain
confirmation of his or her vote and, if necessary, correct it without the
secrecy of the ballot being in any way violated. The system’s transparency must
be guaranteed. Insofar as an e-enabled voting system meets these conditions, it
is compatible with the European standards on electoral matters, and in
particular with Article 3 of Protocol 1 to the European Convention on Human
Rights.
