EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION ON
THE DRAFT ACEEEO CONVENTION ON ELECTION STANDARDS,
ELECTORAL RIGHTS AND FREEDOMS
Adopted by the Venice Commission
at its 58th Plenary Session
(Venice, 12-13 March 2004)
on the basis of comments by
Mr Christoph GRABENWARTER (Substitute Member,
Austria)
Mr Ángel SÁNCHEZ NAVARRO (Substitute Member, Spain)
Table
of contents
Pages
Introduction................................................................................................................................. 3
Preliminary remarks..................................................................................................................... 3
General remark on the
system of the draft Convention.................................................................. 5
Block one: Standards
of democratic elections, voting principles..................................................... 7
Second block: Status
of election participants and the technological infrastructure of the modern
electoral process (Articles 13 ff).............................................................................................................................................. 13
Third block: Status
of international observers (Article 19)........................................................... 17
Fourth block:
Measures not to be regarded as discriminatory in the legislative regulation
of the
electoral process (Articles 20-21).................................................................................... 17
Fifth (and final)
block (Articles 22 ff).......................................................................................... 18
Conclusion……………………………………………………………………………………18
Introduction
1. The Venice Commission has been invited by the
Association of Central and Eastern European Election Officials (ACEEEO) to give
an opinion about the Draft Convention On Election Standards, Electoral Rights
and Freedoms (hereinafter, “the Draft”), approved by the participants in the
international conference of the Association, held in Moscow (Russian
Federation) on September 26-28, 2002 (CDL(2003)057).
2. Two members of the VeniceCommission, MM Christoph Grabenwarter and Ángel Sánchez Navarro, were appointed
to prepare comments on the said draft Convention. The present opinion is a
consolidation of those comments (CDL-EL(2003)014 and
CDL-EL(2004)004).
3. The
opinion on the Draft ACEEEO Convention 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).
Preliminary remarks
4.
The Draft explicitly intends to summarise “in a legally binding
international law, the experience that the Council of Europe and various states
have accumulated on legal regulation and administration of democratic
elections; specifying and amplifying the basic provisions set forth in Article
3 of Protocol No. 1 (entered into force in 1954) to the European Convention for
the Protection of Human Rights and
Fundamental Freedoms…; and defining the international law features of the
modern democratic electoral process in a newly integrated Europe” (Explanatory
Note).
5.
The present Draft Convention wants to give new political and legal
impetus to the synchronisation and harmonisation of the international and national
legal realm, the realisation of the electoral rights and freedoms of a human
being and a citizen, and the preparation and administration of democratic
elections. According to the Explanatory Note, its aim is to reduce certain
inconsistencies, including the separation and duplication of relevant rules and
recommendations contained in documents of various international organisations,
imparting a binding international law significance to the standards of
democratic elections and to the measures guaranteeing the electoral rights and
freedoms of participants in the electoral process.
6.
Its formulation in the framework of a European convention should –
according to the Explanatory Note – make it possible to lay a more solid international
legal foundation for the activity of the European Court of Human Rights which
requires legal protection for the rights and fundamental freedoms of
individuals.
7.
At first glance, when one looks at the proliferation of international
documents and Conventions, one may even wonder how many Conventions of Rights
may Fundamental Rights bear. In fact, in European countries, electoral rights
and freedoms are almost always ruled by national Constitutions, and by most
human rights Conventions and Declarations, since the 1789 Déclaration des
Droits de l’Homme et du Citoyen (Articles 3 and 6: “The principle of any
sovereignty lies primarily in the Nation”; and “The law is the expression of
the general will. All citizens have the right to contribute personally or by
their representatives to its formation”). Among these Conventions and
Declarations, we may point out:
·
the 1948 United Nations Universal Declaration of
Human Rights (Article 21: “the will of the people shall be the basis of the
authority of government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be held by
secret vote or by equivalent free voting procedures”);
·
the 1966 International Covenant on Civil and
Political Rights (Article 25: “Every citizen shall have the right and the
opportunity…(a) To take part in the conduct of public affairs, directly or
through freely chosen representatives; (b) To vote and to be elected at genuine
periodic elections which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of the will of the
electors”);
·
the ECHR and the already quoted Article 3 of
Protocol N. 1 (The 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»); or
·
the Code of good practice in electoral matters
of the European Commission for Democracy through Law (CDL-AD(2002)023rev).
8.
Different texts and different wordings have often the same purpose: to
grant a given fundamental right, such as the right to political participation, in general, and the right
to suffrage which makes political participation possible.
9.
Nonetheless, it is possible to find differences of perspectives. In
particular, the Draft states in its Preamble the wish of the States parties to this
Convention “to contribute to the development of democratic traditions, such as
the expression of the people’s will in elections on the basis of real political
pluralism and a multi-party system, under the supremacy of the constitution
(and other fundamental laws of the state) and national laws relying on the
universally accepted norms and principles of international law”; and their
conviction “that democratic elections are one of the political and legal
instruments of a stable civil society and sustainable development of the rule
of law”.
10.
Those purposes seem to reveal a particular position. In general, the
right to political participation appears linked to general concepts such as
national/popular sovereignty, rule of law, and so on. Modern states (be it
parliamentary Britain,be it revolutionary France)
give birth to new political structures, based on national/people’s will, and
the rule of law as expression of that will. At first glance, elections, and
electoral traditions, are not democratic, in the sense of not being based on
universal suffrage. Nevertheless, they evolve, more or less peacefully, by
enlarging the right to vote and the right to be elected. In this sense, in most
countries of Western Europe, there is an “electoralheritage” which is linked to democratic values. Elections express the will of
the nation, first; and of the people, after. However, the perspective is
individualist, as in most of the liberal Declarations of rights. The vote is
(must be) free. The vote is (must be) secret. The vote is (must be) direct. The
votes are (must be) equal.
11.
In this Draft, however, there is not a wish to describe the principles
of “the European electoral heritage” (as in the “Code” of the Commission for
Democracy through Law), but to prescribe the principles which should contribute
“to the development of democratic traditions”, according to the explicit
purpose of this Draft. In a sense, it could be said that the Draft tries to
develop a democratic tradition that already exists in other countries and
spheres. In western traditions, the development of elections is more or less
parallel to the development of democracy. However, in the Draft, there seems to
be the idea that elections can be not democratic at all.
12.
The consequence is what could be called a “structural/global approach”,
more than an “individual” one. In other words, the Draft seems to point out how
elections have to be held to be democratic (free elections, genuine elections,
fair elections), more than the features of the democratic vote (free,
universal, secret, direct suffrage), which seem to be more or less known. That
is why the Draft primarily defines standards, rather than the rights of the
voters. These are, of course, also considered. But the Draft Convention
emphasises other aspects, such as real political pluralism, multi-party system
and real and law-based possibility of election, as previous requirements
(Article 4.1); the right not to participate in elections (Article 2); the duty
of elected candidates to assume and to remain in office (Article 4.7); or the
definition of the rights of national and international observers (Articles 15
and 19).
13.
In a way, it could be even said that this Draft responds to a previous
heritage of non-democratic elections. The suffrage is well known, but the
functioning of the whole system may not be democratic. The emphasis is not as
much in the suffrage as in the elections as a whole. Of course, democratic
elections require universal, free, secret, direct, equal votes. That is not
enough. Without real pluralism, multi-partism, freedom not to participate,
without observers… the votes can be considered useless in democratic terms.
Elections can be fraudulent. In addition, the point is to define “the
international law features of the modern electoral process in a newly
integrated Europe”, to set “the standards of democraticelections” (explanatory note of the Draft, first and second paragraphs).
General Remark on the system of the Draft Convention
14.
The Draft Convention consists of a preamble and 27 Articles. There are,
however, no further divisions in the Draft Convention’s text (e.g. “parts”,
“sections” or “chapters”). The inner
structure of the Draft Convention, consisting of four so-called “blocks” of
articles, is only mentioned in the “Explanatory Note” to the Draft Convention.
In fact, the structure of the Draft Convention neither corresponds explicitly
to these blocks, which would certainly promote the general understanding of the
Draft Convention as a whole, nor does it determine the articles of each
particular block.
15.
The first “block” deals with
the standards of democratic elections including election principles such as:
periodic and mandatory, free, genuine, fair, open and public elections based on
universal and equal suffrage, held by secret vote or by equivalent free voting
procedures, assuring voters of their freedom to vote with effective judicial
protection and civic (public) and international monitoring. In addition to
these general principles, the Draft Convention includes official language
guarantees, especially in favour of national minorities and ethnic groups, and
the principle of openness and publicity of elections. The first block seems to
contain Articles 1 to 11. However, Article 12 could also be regarded as being
part of this block. The extent of the first block is therefore not clear
enough.
16.
The second “block” defines
the status of “election participants” and the technological infrastructure of
the modern electoral process, ensuring equal legal possibilities for all
election participants, including public monitoring of elections and stronger
judicial guarantees. It includes Articles 13 to 18. It lays down the basic
rules of the status and powers of observers and candidates’ agents, the
procedure for filing complaints against violations of the electoral rights and
freedoms of election participants with courts and other bodies, the basic
principles of information coverage of elections and election campaigns of
candidates and political parties (coalitions) in the mass media and
telecommunications media, as well as general principles for the formation of a
transparent funding mechanism for elections and the election campaigns of
candidates and political parties.
17.
The third “block” consists of
only one article (Article 19). It defines the parameters of the status and
powers of international observers whose presence contributes to the publicity
and openness of elections.
18.
The concluding fourth “block”
of the Draft Convention sets forth measures that must not be regarded as discriminatory
in the legislative regulation of the national electoral process and defines the
obligations of the parties to the Convention. Finally, the fourth block
regulates the signing, ratification and entry into force of the Draft
Convention. This final block includes Articles 20 to 27.
19.
Although the explanatory note considers these articles to be part of the
fourth block, they are clearly a separate part, not related to the object of
the Convention, but to the life of the Convention itself (signing,
ratification, entry into force, accession, denunciation, notification...).
20.
The systematic order within
the text of the Draft Convention suffers certain inaccuracies. The following
examples shall demonstrate this.
a. While Art. 1 uses the term “fair, genuine, ...”
elections, this order is not maintained in the further rules of the Draft
Convention, since the principle of “genuine elections” is mentioned before the principle
of “fair elections” (Articles 4 and 5).
b. The enumeration in Art. 1 can generally be
considered as a “table of contents” of the following rules of the Draft
Convention. Nevertheless, the content of Article 7 (official language of
elections), which belongs to the first block, is not explicitly mentioned in
Article 1 and thus interrupts the general order provided for in Article 1.
c. While the
right to elect and to be elected is separately mentioned in Article 1,
paragraph 2.1, it is at the same time considered as the first aspect of the
universal suffrage in Article 8, paragraph 1.1. The separate mentioning of
these rights in Article 1, paragraph 2.1 could have been left out and
consequently considered as one of the main aspects of the universal suffrage
such as provided by paragraph 2.3. On the other hand, the principle of
“direct suffrage” is only regulated in Article 10, but it is not enumerated in
the introductory Art. 1, although it is undoubtedly one of the generally
accepted election principles, which would have justified its incorporation in
Article 1 of the Draft Convention.
d. Certain
rules of the Draft Convention contain at the same time material principles and
procedural guarantees for these principles. There is no stringent system in the
Draft Convention.
21. Democratic elections can only be held if
certain basic conditions of a democratic society based on the rule of law are
met. The so-called “European electoral heritage” consists of the fundamental
rule that the suffrage must be universal, equal, free, secret and direct.
Furthermore, elections must be held periodically.
22.
In the Draft Convention, democratic elections are considered as “one of
the supreme direct expressions of the power and the will of the people”
(Article 1, paragraph 1). Common European “election standards” in the sense of
the Draft Convention (Article 1, paragraph 2) include:
-
free, periodic and mandatory, fair, genuine, open and
public elections,
-
universal and equal suffrage held by secret vote
ensuring free expression of the voters’ will,
-
judicial and other protection of the electoral rights
and freedoms of individuals, and
-
the effective public control over and impartial international
monitoring of elections.
23.
The enumeration of election standards in Article 1 of the Draft
Convention has certainly an introductory and programmatic character, while the
single election standards are defined and explained in the following articles
of the Draft Convention. However, there is no clear structure in that respect.
The principle of free elections (Article 1, paragraph 2.2.) is established
by following Articles: free elections: Article 2; periodic and mandatory
elections: Article 3; fair elections: Article 5; genuine elections: Article 4;
open and public elections: Article 6. Eelection principles of universal and
equal suffrage are defined in Articles 8 and 10. The conditions of secret
voting are defined in Article 11. Direct suffrage is not included in Article 1,
paragraph 2, though it is mentioned in Article 10 of the Draft Convention. In
addition to these election principles, Article 7 refers to the official
language of elections.
24.
These comments will follow that structure, pointing out different
aspects of the Draft.
Block one: Standards of democratic elections, voting principles
(Articles 1 ff)
25.
As has already been noted, the first group of articles tries to define
the standards of democratic elections, which include rights, principles and
organisational elements.
26.
First, the principles. Democratic elections must be free, periodic
and mandatory, fair, genuine, open, and public. Different features which,
as has been said, refer to the whole election, and not only to each one of the
votes.
27.
The principle of “free suffrage” dealt
with in Article 2 of the Draft Convention under the head of “Free Elections” is
based on two different aspects: firstly, free formation of the elector’s
opinion and secondly, free expression of this opinion including the freedom of
voting procedure and accurate assessment of the result. In order to guarantee
the freedom of voters to form an opinion, it requires that the state and all
public authorities honour their duty of even-handedness. The freedom of voters
to express their opinion requires strict observance of the voting procedure.
Law must punish any violation of these rights and obligations by the state or
by individuals.
28.
Article 2 of the Draft Convention refers to “free elections” in the
sense that the holding of free elections should in any case have a legal basis
consisting of the national constitution and other fundamental state laws in
accordance with universally accepted principles and norms of international law
and international treaties (Article 2 paragraph 1). In addition, it defines
the principle of free elections by the ability of voters, and other election
participants, to choose, without coercion, threat of coercion or any other
unlawful influence, whether to participate or not in elections in the forms
allowed by law and by lawful methods, without fear of punishment, influence or
compulsion, specifically depending on voting and election results (Article 2,
paragraph 3). Participation of a citizen in elections should be free and
voluntary (Article 2, paragraph 4), whereas the obligation of a citizen to
participate in the voting laid down by the constitution or law does not
constitute a restriction of the principle of free elections (Article 2,
paragraph 5). In order to exercise his right to participation in free
voting, each voter shall be entitled to equal and free access to an election
precinct and a polling station (Article 2, paragraph 6). Foreign nationals
and other foreign or international entities shall not be allowed to participate
unlawfully in any activity related to elections and electoral campaigns
(Article 2, paragraph 7). It provides that the applicable rules have to
enter into force before the beginning of the election campaign (Article 2,
paragraph 2); even if it is perhaps difficult to introduce a more stringent
provision in an international convention, it would be suitable to deal with
revisions of electoral legislation well in advance of elections (ie. one year
before).
29.
Nevertheless, the determination of a freely expressed will of voters and
its implementation shall be ensured by the observance of the principle of
“genuine elections” established by Article 4 of the Draft Convention. Although,
the principle of genuine elections can generally be considered as an integral
part of the principle of free suffrage in the mentioned meaning.
30.
The Draft Convention does not refer explicitly to the freedom of voters
to form an opinion. Rules on this question are actually to be found in Articles
12, 14 and 17.
31.
According to Article 2.4, “no one shall influence a citizen to compel
him to participate or not to participate in elections or electoral procedures”.
With regard to the fact that the draft should turn out as a Convention, and thus
as an international treaty, it would be more in conformity with general
practice that it does not impose direct prohibitions on individual persons.
There is a similar situation with regard to Article 3, paragraph 3.
32.
In a number of European countries, the legislature may impose a duty to
participate in elections. This is accepted by Article 2, paragraph 5. For
systematic reasons, Article 2, paragraph 3 and Article 2, paragraph 5 should
therefore be taken together.
33.
Some original and useful cautions are included. Close to traditional
bans to prevent voters from freely expressing their will, and to compel
citizens to declare their intentions of vote, a new – and quite practical –
prohibition is set up: “it shall not be allowed to gather, publish, or
disseminate personal information about voters who have or have not taken part
in the voting” (Article 2.4). Such information may be particularly valuable for
parties’ campaigning among the non-voters.
34.
Article 2, paragraph 7 raises a problem in a different context:
according to the Draft Convention foreign nationals, foreign legal entities,
and “international political movements” shall not be allowed to participate
“unlawfully” in “any activity related to the calling for and the holding of
elections”. This wording must be understood as a general prohibition of
participation of foreigners in electoral campaigns. This conflicts not only
with the constitutional law of some member states but also with the law of the
European Union (EU). It is true that states parties to the European Court of
Human Rights (ECHR) are allowed to restrict the rights of foreigners in the
context of political activities (Article 16 ECHR). However, there is no
obligation under the Convention. On the contrary, under certain circumstances
states parties to the Convention, which are also members of the EU at the same
time, must not take advantage of this permission. First, it is generally
suggested that this article does not apply to EU foreigners in a EU member
state. This has been confirmed by the European Court of Human Rights in the
case of a person who stood for election for the European Parliament (case of
Piermont ./. France, judgment of 27.4.1995; Series A 314). For elections on the
level of local communities this problem is even more evident. As there is a
right for EU foreigners to stand for elections on local community level such a
prohibition would prevent those people from using a right provided in community
law and to be confirmed by the draft Constitution of the European Union.
Finally a number of European states give the right to vote to certain groups of
foreigners even at the national level.
35.
In addition, the strict ban on donations by foreign nationals seems too
strict having regard to the variety of systems in Europe.At any rate, it should apply only when there is an explicit prohibition in the
national legislation (see the terms “shall not be allowed to participate unlawfully”).
36.
In accordance with Article 3 of the Additional Protocol to the European
Human Rights Convention and Article 25.b of the International Covenant on Civil
and Political Rights, Article 3.1 of the Draft Convention provides for periodic elections held at reasonable
intervals. The period of powers of a legislative assembly or other
representative body should not exceed five years. This is fully in line with
European standards and international human rights as far as parliamentary
elections are concerned. For presidential elections, however, longer periods
should be possible. The Draft Convention does not explicitly refer to other
types of elections, such as presidential elections.
37.
The Draft foresees the possibility of restrictions on electoral rights
and freedoms, including election postponement, in extreme situations such as
state of emergency or martial law.
38.
Article 3 of the Draft Convention also deals with the beginning and the
end of voting in elections, as well as the duration of the voting period,
ensuring the most favourable and equal legal conditions for the expression of
the will of all voters. Paragraph 3 again concerns a problem of
third-party-application (see above 7). It should also be applied in conformity
with the principle of proportionality.
39.
Article 4 refers to “genuine elections”. A basic principle,
perhaps even the most basic principle. When we talk about democratic elections,
we mean “genuine elections”, and this idea implies “the determination of a
freely expressed will of voters and its direct implementation”, defining “a real
and law-based possibility to elect candidates”, in a framework of “real
political pluralism, ideological diversity, and a multi-party system”, through
parties “whose lawful activity is under the legal protection of the state”.
40.
That “real” possibility also requires that voters have “timely and free
access to information”, and that candidates “have access to the mass media and
telecommunications media under equal legal conditions” (4.3), following
previously known (and “clear, definite” and “applied in a uniform manner”)
procedures, which “allow candidates… to organise a full-fledged election
campaign”. And this guarantee includes, of course, the right to appeal possible
violations of the election laws (4.6). Apart from the already mentioned duty of
elected persons to “assume office” and to “remain” in it until their powers are
terminated according to constitutional or legal rules. A duty which clearly
points out the possibility of fraudulent elections, neither genuine nor real,
simply because the elected people do not assume their duties or resign, leaving
non-elected people in charge.
41.
As already mentioned before, the rules and measures provided in
paragraphs 2 to 7 of Article 4 could, however, be regarded as being contained
in the principles of free and equal suffrage, so the separate mentioning of an
additional principle of “genuine elections” is not necessary. The meaning of
“genuine” in this context is not clear, especially in relation to the principle
of “free elections”.
42.
The principle of “fair elections”
(Article 5) shall ensure equal legal conditions to all election participants.
“Fair elections” should guarantee
43.
These points are classical. There
are also some original aspects, whose meaning should be possibly better
understood in the global perspective already pointed out. For instance, Article
5.2.4 includes within the guarantee of fair elections the “honest
execution of electoral procedures provided for by laws, specifically during voting
and vote counting”, and the “rapid provision of full information about all
voting results”.
44.
The significance of this Article 5 may also be qualified as introductory
and programmatic, as it gives an overall view of certain aspects of fair
elections referring to provisions contained in other articles of the Draft
Convention.
45.
The content of the principle of “open and public elections” (Article 6)
is also quite traditional: “elections shall be prepared and held openly and
publicly”. This refers to all decisions related with the electoral process,
including statutory acts (which “shall not be applicable until they are
officially published”; and “shall have no retroactive legal force” when they “restrict
electoral rights and freedoms”), and includes the exigency of creating “legal
conditions for the exercise of effective public control… and for impartial international monitoring of
elections”. This principle does not extend, of course, “to the secrecy of
voting and the expression of the voter’s will”.
46.
Article 7 introduces the obligation of considering the existence of
different languages in a country, so that electoral proceedings will have to
use “official languages of all regions…, languages of minority peoples and
nationalities, and national minorities and ethnic groups within the territory
in which regional or minority languages are used, in accordance with the
situation of each language and as far as this is reasonably possible”.
This principle is obviously related with the very idea of real, genuine, and in
general democratic elections: elections are not genuine, free, and democratic
if some groups of citizens can have no free, real, equal… access to information
and means.
47. The principle of universal suffrage in the sense of Article 8 refers to the active
and passive electoral rights, in other words to the right to vote (Article 8,
paragraph 1.1: the “right to elect”) and the right to stand for election
(the “right to be elected”).
48. According to the Draft Convention these
rights are subject to a certain number of conditions, such as the age
(paragraph 1.1), the nationality or citizenship (paragraph 1.2) and the
residence (paragraphs 1.3 and 1.4). The right to vote should at least be
granted to a person who has attained the age of majority (in most states 18
years), while the minimum age for the right to be elected may be higher but no
more than 25 years, unless otherwise provided by the constitution or laws with
respect to candidates for certain elected offices, in particular the head of
state or the highest-ranking official of a territorial unit within a federal
state (paragraph 1.1). It is understood that the terms “when the person is
able to independently and to a full degree exercise his rights and discharge
his duties” do not mean a limitation of the right to vote; for the sake of
clarity, it would be preferable to drop them. The requirement for the period of
residence should only be imposed at regional or local elections, but should not
exceed six months (paragraph 1.3). The electoral rights should also be
granted to citizens who lawfully reside outside the territory of their state
(paragraph 1.4). In paragraph 1.3, the term of “more” before
“reasonable” is certainly a lapsus calami,
but it is not clear what is meant by assuring “electoral rights… of the given
territory as a whole”.
49. Paragraph 1.6 provides that the electoral rights
may be restricted by law for persons pronounced by a court as incapable and
persons serving a criminal sentence. Apart from the conditions of incapacity or
a criminal sentence, the provision by law and the express decision of a court,
Article 8 does not refer to the principle of proportionality as an imperative
condition for the legal deprivation of the electoral rights in accordance to
the conditions under which fundamental rights may be restricted and it does not
restrict the condition of criminal conviction to a serious offence. However,
Article 20 refers implicitly to this principle, since it provides that the
electoral rights and freedoms of individuals may be restricted only so far as
it is necessary for the protection of the health, rights and legitimate
interests of other persons, the safeguarding of national security and public
order and the prevention of crime (Article, 20 paragraph 1). Article 20,
paragraph 2.1 permits the constitutions to restrict the electoral rights
and freedoms of individuals, especially providing reasonable requirements for
persons pronounced to be incapable by a court or a person serving a criminal
sentence. The principle of universal suffrage is closely related to the
“effective, impartial and equitable procedure of state registration of voters”,
and to the existence of a voter list, which has to be updated periodically.
Each citizen has also “the right to correct this information to ensure its
completeness and accuracy, as well as the right to know who is using or has used
this information and why, and to whom it has been supplied” (8.1.5).
50. For the purpose of coherency, it would be
better to have a closer link between Articles 8 and 12. Under the principle of the
universal suffrage voters should be registered on a permanent basis. The
registration of voters should be updated at least once a year. Each voter has a
guaranteed right to receive information about his inclusion on a voter list and
to appeal in a court or “in some other procedure established by law”, the
refusal to include him on or his removal from a voter list, or any inaccuracy
in the information about voters (Article 8, paragraph 1.5). Voter lists
shall be made available for examination and additional correction. Under
certain circumstances, supplemental voter list shall also be provideda. In
addition to these guarantees, Article 8, paragraph 2 contains a general
non-discrimination clause.
51.
The principle of equal suffrage
is dealt with in Article 9 of the Draft Convention. The observance of this
principle comprises a variety of aspects. It means that each voter has the same
number of votes as other voters, and his vote has the same weight as other
votes (“equality in voting rights”;
Article 9, paragraph 1.1). According to the Draft Convention, electoral
constituencies and precincts should be formed on a fair basis, so that voting
results should reflect most accurately and fully the will of the voters who
participated in the voting, but with a “minimum allowable deviation” from an
average representation quota for a constituency and with due regard to
territories with national minorities and ethnic groups (“equality in voting
power”; Article 9, paragraph 1.2).
This is obviously a lapsus calami:
the Draft Convention aims at fixing a “maximum” admissible departure
from the distribution criterion adopted.
52.
Article 12 refers again to further measures to ensure equal legal
conditions and additional possibilities for participation in elections,
especially for women and persons with physical and other disabilities
(infirmities) as well as other categories of the population (representatives of
indigenous and small peoples, nationalities, other national minorities or
ethnic groups). However, the provisions of Article 12 could be considered as
specific exceptions of the principle of equal suffrage, thus it should form an
additional paragraph of Article 9 (equal suffrage).
53. While the registration of candidates and
lists of candidates of political parties is dealt with by Article 4,
paragraphs 5 and 6 (genuine elections), Article 8, paragraph 1.5
(universal suffrage) refers to the registration of voters and its procedure,
especially to the voters lists.
54.
Article 9, paragraph 2 establishes the principle of voting in
polling stations but establishing at the same time legal exceptions to this
principle and other legal forms of voting, such as postal voting, voting on the
basis of an absentee certificate, early voting, voting on the basis of a power
of attorney or other forms of voting which assure maximum convenience to
voters, including persons with physical and other disabilities (infirmities;
paragraph 3).
55. In this context it has to be mentioned that,
if the present (detailed) structure of the Draft Convention is maintained,
problems with regard to remote voting should
be addressed more precisely. This is even more important as there are a number
of initiatives on national level in a number of states as well as on
international level, in particular within the framework of the Council of
Europe. Reference is made to the Integrated Project 1 “Making Democratic
Institutions work” on e-voting. In particular, provisions providing for
security, reliability and transparency of such voting methods should be
introduced. This also applies to other
forms of remote voting such as the traditional form of postal voting and proxy
voting. These questions could also be dealt with in a more precise manner in
the provision on secret voting (Article 11).
56.
A final comment deserves to be made. Paragraph 4 of Article 9 foresees
that “a candidate shall no take advantage of his position or official status to
gain election or the nomination and/or election of other candidates…”. This idea is pointing out one of the main
sources of inequality in contemporary political life, and of course in
elections. In fact, the Draft (Article 20) only mentions the classical notion
of restriction of the right to be elected, or rather to be a candidate, due to
the official status of some persons. But the dimension of modern administration
makes it difficult to control the use of public means (time, facilities, even
staff members) for electoral purposes, a problem to which the Draft opposes the
general obligation of the States who are Parties in the Convention “to prevent
the state, administrative and other resources, including state and municipal
employees, from being used to express preferences or create privileges or
restrictions for candidates or political parties… participating in elections”
(Article 21.2.5). A point that deserves to be underlined.
57.
The principle of direct suffrage
is dealt with in Article 10, although direct suffrage is not enumerated
explicitly in Article 1, paragraph 2 of the Draft Convention. According to
this provision, direct suffrage should be applied to at least one of the
chambers of the national parliament but also to other regional or local
assemblies (Article 3 of the Additional Protocol to the European Convention on
Human Rights; European Charter of Local self-government, ETS No. 122). The
direct election of the national legislative assembly and other regional or
local representative bodies is one of the principal aspects of the European
constitutional and democratic heritage. If in a bicameral system, the other
chamber is not elected by direct elections, this does not contradict the
provisions of the Draft Convention (Article 10 paragraph 3). The need of
an explicit mention of the vote “against” (paragraph 1) could be
questioned, since it is unusual in most member countries of the Council of
Europe.
58.
The voters’ right of secret
voting as one aspect of voter freedom should not be restricted or infringed
in any way (Article 11, paragraph 1). The terms “and other equivalent
forms guaranteeing freedom of voting” in the title do not look necessary. Any
kind of control whatsoever over the expression of voters’ will should be
excluded in any forms established by law (paragraph 3). Article 18,
paragraph 5 refers to the prohibition and punishment provided by law of
any violation of the secret suffrage.
59.
This first block of provisions finishes with Article 12, allowing some
exceptional measures which could be considered as violations of the principle
of equal suffrage (and equal conditions and opportunities to participate in the
electoral process). More concretely, the Draft includes “additional
possibilities” to “take further measures” to ensure to women conditions equal
to those enjoyed by men; and to guarantee disabled persons, or other categories
of population (“representatives of indigenous and small peoples, nationalities,
other national minorities, or ethnic groups”) additional conditions for their
participation in the electoral process. A rule that may be necessary, subject
to certain formal and substantial conditions (particularly, the need to find a
constitutional basis able to justify the different legal treatment), but which
can also be very dangerous, unless it is very clearly defined.
Second block: Status of election participants and the
technological infrastructure of the modern electoral process (Articles 13 ff)
60.
Article 13, referred to the “preparation and administration of elections
by independent election bodies” could be considered the end of the first block,
or the beginning of the second. In fact, it is included in this second group of
articles just to emphasise its relevance for the public monitoring and
guarantees of the electoral process.
61.
The preparation and administration of elections should be carried out by
collective election bodies headed by
the “central election body”, acting independently, impartially and within the
scope of competence and powers established by the constitution and/or laws and
other statutory acts (Article 13, paragraph 1). Only independence,
impartiality and transparency from politically motivated manipulation will
ensure proper administration of the election process. The central electoral
body or commission should have a permanent status and a special composition,
facilitating maximum impartiality. Article 13 does not, however, refer to this
particular aspect.
62.
The procedure for the formation of election bodies, their powers and their
legal status should be established by
law. Election bodies should include representatives
of political parties and other groups participating in the election,
national minorities and ethnic groups (paragraph 2). By these means,
stability of the specific rules of electoral law, especially those covering the
electoral system per se, the composition of electoral commissions and the
drawing of constituency boundaries can be ensured. These provisions could be
made more precise: electoral law
should have the rank of statute law and should not be changed too often and in
no case immediately before elections (within one year). The basic rules and
elements of the electoral procedure should as well be defined by the
constitution or another text higher in status than ordinary law. Article 13,
paragraph 6 provides that resolutions
of lower election bodies may be
appealed in the higher election body or in a court, which may reverse the
decision of the lower election body.
63.
In Articles 14, 17, 20 and 21 the Draft Convention provides for a number
of political rights in the context of elections. In this respect, one would
expect in a Council of Europe document that reference is made at least once to
the relevant Articles 10 and 11 of the ECHR and of Article 3 of Protocol No. 1.
Such a reference would also ensure that restrictions on these rights are
admissible within the limits of the “necessity” test effected by the European
Court of Human Rights. Although the Draft Convention makes reference to
international obligations, restrictions etc. in Article 20, paragraph 1, 20
paragraph 3 and Article 22, paragraph 2, this is not enough to cover the whole
election process and the corresponding electoral campaigns. The Draft
Convention also goes on to regulate in a detailed way the political process
leading to elections. In this respect it should be kept in mind that the
European Convention on Human Rights allows restrictions beyond those formulated
in the Draft Convention, such as restrictions on the political activity of
civil servants, soldiers, policemen etc. in particular in post-communist times.
This may go further than the incompatibilities mentioned in Article 20,
paragraph 5 of the Draft Convention.
64.
Generally speaking, the basis of the status of candidates is formed by
traditional political freedoms: to express their views and preferences, to
search for, obtain and communicate information, to travel over the country, to
associate with others in political parties…
65.
Article 14, paragraph 1 guarantees each citizen, individually or
collectively, the right to express freely political views and
political preferences, which can be regarded as part of the comprehensive
freedom of opinion and expression. Emerging from this fundamental freedom, each
citizen should also be entitled to seek election to elected offices and
nominate his candidacy for nomination as a candidate, search for and
communicate information about the electoral process and make a sound personal
choice, and to travel freely over the territory of the state. Article 14,
paragraph 2 rules the individual right to join or to organise a political
party on a lawful basis for the purpose of participation in elections,
including the nomination of candidates or lists of candidates. Additionally,
Article 14, paragraph 3 repeats the duty to safeguard and protect the
political and electoral rights and freedoms by law. Article 14,
paragraph 5 allows for a selective verification of a quota of signatures.
This should be admitted only when it leads to the validation of a list.
Invalidation should be possible only when it is certain that it has not
obtained the required number of valid signatures.
66.
The States parties in the Convention are also obliged to organise what
could be called an institutional campaign about elections, “informing citizens
and other election participants” about the rules of the electoral process
(14.4).
67.
The Draft allows some measures which may be specified by the law to
restrict the right to nominate and register candidatures. Be it through the
requirement of a number of voters’ signatures (which shall not exceed 2
percent, an excessively high percentage: Article 14.5, paragraph 2), or through
the payment of an electoral deposit (which must not be too burdensome and must
be returned if the candidature receives a certain number (percentage) of
votes). According to the Draft, the law should establish the duration of the
signature collection period, the deadline for submission of the signatures for
verification as well as the procedure for the verification of signatures and
for pronouncing them to be bona fide or otherwise
(Article 14 , paragraph 5). The decision to register a
candidate or a list of candidates participating in the elections may be
reversed by courts or election bodies accordingly (paragraph 6). The
existence of an electoral threshold, once more established legislatively
(Article 14.7), for parties (coalitions) to participate in the distribution of
deputy mandates, is also foreseen, with the clear aim of avoiding the
atomisation of the Parliament, divided into too many small party groups or
fractions, and thus trying to make it easier to form governmental majorities.
68.
Article 15 rules the “status and powers of national observers, agents
of candidates”. This article shows clearly the global difficulties
previously suggested, especially when referring to “national observers”
appointed by non-governmental public organisations. The point is that free,
fair, genuine… in a word, democratic elections reach legitimacy through
different ways. One of them is, of course, by having an electoral
administration, which acts with respect to the already quoted principles of
independence and impartiality, always related to the rule of law. It is, in a
word, a technical control of the rules made by a body which is external to the
political fight, and whose “externality” is ensured through different rules
(composition, decision-making, statute of their members…).
69.
A second way is, of course also, by “internal control”: candidates,
parties and coalitions taking part in the electoral fight, have their
representatives and observers in all the electoral process, so that they may
report on any suspected violation of democratic rules, and even appeal to the
competent bodies (administrative or judiciary), to provoke a decision on any
conflicting point. Therefore, it is a control based on the partial defence of
different interests, internal to the electoral process.
70.
There is even a third way, due to general social control. If the
electoral process is submitted to the principles of publicity and openness, as
a principle there is a quite general control, which may be especially evident
in moments like voting or vote-counting, which have to be open to citizens in
general.
71.
The problem may be with the participation of observers appointed by
national non-governmental organisations. In fact, and due to certain particular
moments (transitions, periods of high political conflict), the non-governmental
organisation observers tend to give the idea of an “external” (independent,
supra-partes, impartial) control, even when it is difficult to test, and to
control, the real independence of those organisations from all political
parties or, at least, political interests or trends. From this perspective, the
participation of these observers should be carefully defined: number of
organisations, time in which they can act, rights which they are entitled to…
In this sense, the Draft establishes the same status for agents of candidates
than for NGOs observers, without imposing any additional limit. The only
restriction, quite logical and common to all kind of agents and observers, is
that the law may prohibit the simultaneous presence at a polling station of two
or more observers representing the same interests.
72.
Article 16 provides rules for funding of elections and election
campaigns. It requires, of course (although this rule may be absent in most
of traditional electoral laws) that the public activities related to elections
must be funded under proper conditions (“the budget funds shall be allocated
and made available to election bodies in due time and in amount sufficient for
organising and administering elections…”).
73.
More usual is the requirement of public funding of candidates and
parties participating in elections, “on a fair basis” as the possibility of
private funding. The allocation of public funds must follow objective criteria,
such as number of votes received in previous elections, number of registered
candidates, status of a parliamentary party, etc. In any case, the rules
include the prevision of a maximum size of the election fund, and the openness
and transparency of private donations and expenses, which allows an effective
control by the competent bodies. It would be suitable, in order to be
absolutely clear, to add at the end of Article 16, paragraph 3, after “by other
conditions stipulated by law”, “in conformity with the principle of equality”.
74.
Article 17 deals with information support of elections and election
campaigns. The States must ensure
basic freedoms (to search for, to collect and to disseminate information,
without censorship), and equality of treatment of the candidates and parties,
through impartial and balanced information, “without any political, ideological
or other biases”. This is another of the fundamental pillars of modern
elections, in which the absence of objective criteria (such as, the competence
of the independent electoral bodies to control possible partiality in
information) may impede the proper functioning of election principles. Access
to private (paid) media is also allowed, submitted to general control of
election expenditure. And, even when these rights have to be of course limited,
the problem may arise when defining the limitative criteria: for instance,
Article 17.3 quite logically bans “purposeful direct or indirect defamation of
candidates or political parties (coalitions) participating in elections… in the
mass media and telecommunications media”. The provision of 17.5, according to
which “no abuse of the freedom of assembly,… of association, … of speech and
freedom of mass media shall be allowed, including calls for a violent seizure
of power, a violent change of the state system, a violation of the territorial
integrity of a state, calls directed at campaigning of war, or terrorist or
other violent acts inciting social, racial, gender, national, ethnic or
religious hatred and enmity”, seems more problematic. The problem will naturally be the effective
control and implementation of these rules, which should be restrictively
interpreted. It should be made clear that they have to be applied in conformity
with the principle of proportionality.
75.
Again in Article 17, reference is made to the “conditions of real
pluralism of opinions”. As far as a duty to guarantee the freedom of expression
goes beyond the requirements of Article 10 of the European Convention of Human
Rights this seems problematic. Considering that it is covered by the Human
Rights Convention it seems quite exaggerated to repeat requirements in detail
in this document.
76. With regard to the “equal” access (“on an equitable
basis”) to mass media required according to Article 17 paragraph 4 of the Draft
Convention reference is made to national practice according to which the size
of a party may influence the extent of access to the mass media.
77.
To finish with this Article, the provisions calling for using all native
languages and additional instruments for all citizens (including those
belonging to national or ethnic minorities, or those with physical or other
disabilities) (Article 17.6) to participate in the electoral process must also
be positively considered.
78.
Article 18 sums up the rules for complaints for violation of
electoral rights and freedoms. It sets up the general principle that all
national (constitutional, civil, administrative, criminal) procedures must
serve to the legitimate and public nature of elections. The subjects entitled
to submission of complaints because of violation of electoral rights and
freedoms are widely considered, so that they include all participants in the
electoral process. Of course, procedural details have to be clearly laid down
by law, and they have to consider the special nature of these processes,
particularly with respect to the time of adjudication, which “shall not lead to
the postponement of elections or electoral procedures, shall not violate the
integrity of the electoral process, and shall not in any way affect the actual
expression of the will of citizens”, as general but clear criteria.
Third block:
Status of international observers (Article 19)
79.
This block is in fact composed of just one Article, Article 19. It
considers an aspect which is quite common in “new democracies”, that is the
participation in the electoral process of international observers, experts
usually appointed by international organisations to guarantee the respect of
all rights and freedoms constitutionally, legally or conventionally
established. Even when these observers partially share the same status (rights
and duties) already seen with reference to national – NGOs – observers, they
are probably less likely to create problems of partiality, even though the
conditions for their participation and their powers should also be carefully
defined. In this respect, Article 19.7 makes a quite comprehensive list of
powers, which obviously highlights the limits of not interfering in the work of
the bodies in charge of the preparation and administration of elections, and
the prohibition to “engage in any activity unrelated to monitoring of
elections”. Their opinions must be publicised “after the end of voting”, thus
avoiding any possibility of political/electoral usage.
80. The possibility to withdraw international
observers’ accreditation (Article 19, paragraph 8) should be interpreted in
conformity with the principle of proportionality. The same is true for the
restrictions on their rights based on national security (Article 19, paragraph
7.1; see also Article 15 paragraph, 4.1 on national observers).
Fourth block:
Measures not to be regarded as discriminatory in the legislative regulation of
the electoral process (Articles 20-21)
81.
This part of the Draft, as clearly stated by the explanatory note and by
the title of Article 20, tries to set up some rules which can legitimately
limit the electoral freedoms and rights acknowledged in the rest of the
document, and that in some cases have been already admitted in previous
articles.
82.
The first is a general rule, very similar to others established in many
international documents on human rights. It says that “the electoral rights and
freedoms of individuals may be restricted by law only so far as it is
necessary for the protection of” some other constitutional or general
principles, such as “health, rights, and legitimate interests of other persons,
the safeguarding of national security and public order, and the prevention of
crime” (20.1). In the same general sense, paragraph 3 requires that some
particular restrictions “may be imposed only by law”, and “shall conform to the
international obligations of a state”.
83.
Other paragraphs admit other measures, be they negative (restriction of
rights for incapable or criminally sentenced persons; establishment of a
“reasonable period” after naturalisation to be fully entitled to enjoy
electoral rights and freedoms, and provided a liberal policy with respect to
naturalisation is pursued) or positive (legislative allocation of a quota of
deputy mandates to ensure representation of minorities, additional guarantees
for women or disabled persons, including measures for inclusion on lists of
candidates). Some of these possibilities are, once more, foreseen in Article 21.2.2,
which obliges the Parties to the Convention “to take the necessary measures… to
assure that [these categories of persons] have additional means for
participating in elections”.
84.
Article 20 also allows some measures concerning the ability to restrict
participation in the electoral process of some categories of persons, for
various reasons (“candidates running for re-election”; “members of the clergy,
employees of a body of executive power, judges or prosecutors”). A restriction
with, as previously suggested, is strongly justified, even if the different
cases have to be looked at carefully, taking into account the various
circumstances in each country; and, what is more, leaves out some other cases
of categories of persons who, because of their position, could influence the
voting (for instance, owners of media holdings).
85.
Article 21 summarises the “obligations” undertaken by the Parties to the
Convention. Most of those obligations have already been pointed out, be it
because of their general character (“to guarantee protection of the democratic
principles and norms of electoral law, the democratic nature of elections…; to
have strict requirements for declaring elections legitimate”: 21.2.1; “to develop,
introduce and/or use new information and computer technologies… which
contribute to the openness and publicity of the elections… and to raise the
trust of voters, candidates…. and other election participants in electoral
procedures and elections in general”: 21.2.6; “to adopt national programs… of
civic education and training…”: 21.2.7; and others); be because Article 21
repeats obligations previously defined (“to take the necessary measures,
including legislative measures, to assume that women, persons with…
disabilities,… national minorities or ethnic groups, have additional means for
participating in elections”: 21.2.2; “to establish an effective and
non-discriminatory procedure for the registration of voters”: 21.2.3; the
already mentioned prohibition to use public resources and employees for partial
electoral campaigns: 21.2.5).
86. Some other
obligations are more interesting, as is
the case of Article 21.2.12, which foresees the possibility of foreigners
residing in the country to take part in some categories of elections: “to
strive to grant the right to elect and be elected in elections for bodies of
local administration… enjoyable to foreign nationals and stateless persons who
reside permanently on lawful grounds in the territory of the [State] Party to
this Convention, provided they meet the same criteria as citizens of the
state”.
Fifth (and final)
block (Articles 22 ff)
87. Even when they are considered as part of the previous
block in the Explanatory note, the last six articles more generally referred to
the life of the Convention: Article 22 specifies that nothing in it prevents
the States Parties from the fulfilment of their international obligations, nor
shall interfere with other spheres of rights and freedoms. Article 23 rules the
procedure for signature and ratification of the Convention, and for its entry
into force. There is a lapsus calami in Article 23 paragraph 3
(“rectification” instead of
“ratification”). Article 24 refers to the possibility of accession of
states that are not members of the Council of Europe. Article 25 defines the
obligation of the Parties to present periodically to the Secretary General of
the Council of Europe a report on the measures taken in the sphere of this
Convention, and Articles 26 and 27 provide for the possibility of denunciation
of the Convention and describe the obligations undertaken by the Secretary
General of the Council of Europe referred to notification of various events
related to the life of the Convention.
Conclusion
88.
The adoption of a convention on elections could be an important step
towards the harmonisation of electoral legislation all over Europe, in
conformity with the principles of the European electoral heritage and taking
into account the Parliamentary Assembly and Congress of Local and Regional
authorities’ recommendations to transform the Venice Commission’s Code of good
practice in electoral matters into a Council of Europe convention. The drafting
work of the ACEEEO has to be welcomed in this light.
89.
The Draft has some elements which reproduce other international – or,
more specifically, European – international documents; some others which might
pose a few difficulties. It offers an interesting regulation of the different
aspects of the electoral process, including not only rights and freedoms of the
different agents involved, but also the description of the context and the
circumstances, which may influence, and give sense, to the whole process.
90.
Irrespective of the particular questions addressed in this opinion, the
general shape of the Draft Convention raises a number of questions. It is not
short, on the contrary. It provides many details, which are sometimes very
important, which is quite surprising considering they are not usually found in
such an international document. A number of guarantees can be found twice or
even more often in the Draft Convention, and not always in the same form. This
may give rise to misunderstandings. The Draft Convention refers to the
principles of the European electoral heritage. These principles could however
be presented in a more consistent way in order to avoid misinterpretations.
91.
Concerning the substance, the essential features of the European
electoral heritage have been introduced into the text, although certain number of points, which will not be enumerated
again here, could be reviewed. It should
be underlined, in a general way, that all restrictions to the rights enshrined
in the Convention should be clearly submitted to the principle of
proportionality.
