draft joint recommendations
on the electoral law and
the electoral administration
in ALBANIA
by
the
OSCE/ODIHR
and
the Venice Commission
on
the basis of comments by
Mr. Jessie
Pilgrim (OSCE/ODIHR, expert, USA)
Mr. Adriaan
Stoop (OSCE/ODIHR, expert, the Netherlands)
TABLE OF
CONTENTS
I. INTRODUCTION.......................................................................................................................................................... 1
II. EXECUTIVE
SUMMARY............................................................................................................................................. 3
III. DISCUSSION
ON THE ELECTORAL CODE.......................................................................................................... 4
A. Election Administration in General................................................................................................... 4
B. The Central Election Commission (CEC)............................................................................................. 6
C. Zone Election Commissions (ZEC).......................................................................................................... 11
D. Local Government Election Commissions (LGEC)........................................................................ 11
E. Voting Center Commissions (VCC)......................................................................................................... 12
F. Voter Registers................................................................................................................................................ 13
G. Observers and Transparency................................................................................................................ 15
H. Election System for the Parliament................................................................................................ 16
I. Electoral Zones for the Parliament............................................................................................... 16
J. System of Local Government Elections.......................................................................................... 17
K. Referenda Elections.................................................................................................................................... 18
L. Candidacy Rights and Nomination Procedures........................................................................ 19
M. Electoral Campaign and the Media.................................................................................................. 20
N. Election Financing........................................................................................................................................ 21
O. Voting Procedures......................................................................................................................................... 21
P. Invalidation of Elections........................................................................................................................ 25
Q. Election Complaints and Appeals...................................................................................................... 25
R. Appeals to the CEC......................................................................................................................................... 26
S. Appeals to the Electoral College...................................................................................................... 27
T. Sanctions and Administrative Penalties..................................................................................... 27
U. Technical Drafting Concerns
With Organization, Definitions, and Consistency of the Electoral Code 27
IV. CONCLUSION............................................................................................................................................................ 29
DRAFT JOINT RECOMMENDATIONS ON
THE
ELECTORAL LAW AND THE ELECTORAL
ADMINISTRATION
IN ALBANIA
By
OSCE/ODIHR
and CoE Venice Commission
Warsaw/Strasbourg
xx
March 2004
I. INTRODUCTION
1.
This joint assessment of the Electoral Code of the Republic of Albania[1]
is provided by the Organization for Security and Co-operation in Europe’s
Office for Democratic Institutions and Human Rights (“OSCE/ODIHR”) and the
Council of Europe’s European Commission for Democracy Through Law (“Venice
Commission”), on the basis of comments by two experts of the OSCE/ODIHR, Mr.
Jessie Pilgrim (USA) and Mr. Adriaan Stoop (Netherlands).
2.
Furthermore, the assessment is based on:
- an unofficial English translation of the Electoral Code
(CDL-EL(2004)009);
- the Constitution of Albania;
-
the OSCE/ODIHR Final Report on the 2001 Parliamentary
Elections in Albania,24 June - 19 August 2001 (11 October 2001);
-
the OSCE/ODIHR Final Report on the 2003 Local
Government Elections in Albania,12 October 2003 – 25 January 2004 (25 February 2004);
- the report of the Ad
hoc Committee of the Parliamentary Assembly of the Council of Europe for the
observation of the parliamentary elections in Albania (24 June, 8 July, 22
July, 29 July and 19 August 2001) (Doc. 9193, 10 September 2001);
- the report on the
observation of the local elections in Albaniaheld on 12 October 2003
(CG/CP (10) 16, 8 December 2003);
- the report on the
local by-elections in Tirana (Albania),28 December 2003 -
Addendum to report Albania,CG/CP (10) 16 – (CG/Bur (10) 87, 23
February 2004);
- comments by Mr Bernard Owen (Venice Commission, expert,
France);
- comments by Mr Rinaldo
Locatelli (Congress of Local and Regional Authorities of the Council of Europe,
expert, Switzerland);and
- the Code of good
practice in electoral matters adopted by the Venice Commission, including the
Guidelines on Elections (CDL-AD(2002)023rev).
3.
The present recommendations were elaborated following resolution 1320
(2003) of the Parliamentary Assembly of the Council of Europe, which invites
the Venice Commission to formulate opinions concerning possible improvements to
legislation and practices in particular member states or applicant countries.
4.
This consolidated report will be presented at the 8th meeting
of the Council for Democratic Elections (Venice,11 March 2004).
5.
The Electoral Code was adopted by Parliament on 19 June 2003, primarily on the basis of
amendments to the previous law agreed consensually in a bipartisan
parliamentary committee on electoral reform.
This bipartisan committee was established on the suggestion of the
OSCE/ODIHR Final Report on the 2001 Parliamentary Elections. All parliamentary
parties were represented on this committee, which was co-chaired by the
Socialist Party and the Democratic Party.
Amendments were approved with full consensus, in almost all cases,
in accordance with a decision-making formula requiring a simple majority which
included the votes of the two main political parties. The bipartisan committee
addressed most of the recommendations of the OSCE/ODIHR Final Report on the
2001 Parliamentary Elections. Two subsequent protocol agreements between
the Socialist Party and the Democratic Party committed the signatories to
address outstanding issues, notably election financing and electoral systems,
after the 2003 local government elections. The text of the resultant SP-DP
joint amendments, which deals with the three levels of election commissions and
electoral zone boundaries, was included with the amendments approved by the
bipartisan committee to form the new Electoral Code of Albania. Although this new Electoral Code reflects
most of the recommendations of the OSCE/ODIHR Final Report on the 2001
Parliamentary Elections, some amendments raise concern and require
clarification. A number of significant
issues remain to be addressed. The
opportunity remains to address these issues prior to the Parliamentary
elections scheduled for 2005.
6.
This assessment is intended to assist the authorities of Albaniato further develop and improve the legislative framework for the conduct of democratic
elections in order to meet OSCE commitments and other international
standards. The OSCE/ODIHR and Venice
Commission remain committed, together with the OSCE Presence in Albania,to provide assistance to further improve the legal framework for elections in Albania. However, the extent to which any amendments
to the law can have a positive impact will ultimately be determined by the
level of good faith and political will exhibited by political parties, state
institutions and officials responsible for implementing and upholding the law.
7. Most of the recommendations of the OSCE/ODIHR
Final Report on the 2001 parliamentary elections have been taken into account
in the Electoral Code. A key improvement
has been the introduction of a new system for complaints and appeals against
decisions of election commissions. The
Electoral Code in general provides an adequate basis for conducting democratic
elections and marks significant progress in the development of the legal
framework for elections in Albania.
8. However, shortcomings remain in the Electoral
Code and there are provisions that raise serious concerns. Some of the shortcomings are due to the
written text of the Code. Other
shortcomings are due to practical implementation, as shown during the local
government elections of October 2003. Of
major concern are provisions regulating formation of electoral commissions and
establishing qualified majority voting requirements in commissions on
significant issues. These provisions
have given an extremely dominant role to each of the two main political parties
at every level of the election administration. Intended to address concerns
that the previous composition model led to the under-representation of the
opposition, these changes have failed to diminish the highly politicized
environment noted in previous reports and some members of election commissions
have continued to behave in response to political pressure rather than in their
required role of impartial and independent election administrators. This situation has also provided each of the
two main political parties with the ability to block decision making in
election commissions at every level.
9.
Other important areas of concern are:
▪ provisions for appointment of members
of the CEC that limit the prerogative of the appointing institutions
established in the Constitution;
▪ provisions for appointment of members
of the CEC and all lower election commissions that may hinder the professional
and non-partisan performance of the election administration;
▪ provisions that grant Parliament
authority to dismiss a member of the CEC, which likely are contrary to the
Constitution;
▪ provisions regulating referenda
elections, which likely are contrary to the Constitution;
▪ ambiguity in registration provisions
that could permit political parties and coalitions to change the order of
candidates on a candidates list after elections;
▪ lack of sufficient provisions for the
timely and accurate compilation and updating of voter registers;
▪ extraordinarily complex rules for the
allocation of Parliamentary mandates;
▪ unnecessarily complicated counting
procedures;
▪ vague provisions for the invalidation
of election results that fail to take into account the use of two ballot
sections;
▪ insufficiently detailed rules on
political party finances and their disclosure; and
▪ inconsistency in the use of
definitions and deadlines, as well as in the use of terminology.
10.
The recommendations provided in this assessment address the outstanding
and problematic issues that remain and offer possible solutions respectively.
11.
Articles of the Electoral Code are not discussed in the order in which
they appear. Rather, articles are
discussed as they are relevant to the major issues that should be addressed in
an election law. This approach
facilitates evaluation as to the degree to which the Electoral Code is in line
with OSCE commitments and other international standards for democratic
elections.
12.
It must be recognized that no formal or
technical solution for the formation of election commissions can be a remedy
for lack of political will on behalf of the major election stakeholders. The stakeholders must agree on the rules for
the election and respect them in good faith throughout the election process.
13. A fundamental problem with the Electoral Code
is that some of its provisions encourage and foster a highly politicized
election administration that is dominated by the two major political parties at
every level. This highly politicized
environment, combined with qualified majority voting requirements in all
commissions on any issue of consequence, has given de facto veto power
to each of the two major political parties on every significant issue at every
level of the election administration. While such veto power may be perceived as a
protection for the minority not to be excluded from the decision making
process, it in fact has a negative impact on the process when used by high
level representatives of the political establishment. Further, the current provisions for
appointment of members of the CEC and all lower election commissions may hinder
the development of an independent, professional, efficient, and non-partisan
election administration in Albania.
The current Electoral Code provisions for election administration must be
improved. While permitting political
party representation on commissions before elections, the
Code should establish impartial, independent, and professional election
commissions that operate in a non-partisan manner. Further, it must be recognized that no formal
or technical solution for formation of election commissions is a remedy for
lack of political will.
14. Authorities in Albania
should consider amendment of Article 154 of the Constitution, along with
amendments to the Electoral Code, as part of the reform effort to develop an
independent, professional, efficient, and non-partisan election
administration. Additionally, the CEC
and all election commissions may wish to consider extended membership
possibilities for representatives of political parties before an election,
specifically whether they have voting rights or not. The primary goals in this reform effort
should include: (1) creating a
transparent process for appointing the CEC and other election commissions so
that it is not a simple matter of Institution A or Political Party B appointing
a certain number of members and, as a result, a “win or lose” situation for
those who have a stake in the elections; (2) developing an independent,
professional, efficient, and non-partisan election administration that is not
subject to political party or government manipulation; (3) ensuring political
party confidence with the appointment of extended members to commissions before
an election. The sole reliance on
political parties to administer elections may impede the development of an
independent, professional, efficient, and non-partisan election administration. It must be finally noted that any reform must
provide adequate transitory provisions as such reform would constitute the
third appointing scheme for election commissions in Albania
since 2000. Adequate and detailed
transitory provisions are critical for the appointment of members to the CEC in
particular.
15. Another problem with the Code is its lack of
provisions to ensure that qualified individuals are appointed to election
administration structures. This has
resulted in the appointment of individuals based singularly on their ability to
obstruct and hinder the election processes.
It has also resulted in the appointment of individuals who simply do not
have the necessary skills to administer elections. In order to address these problems, The
OSCE/ODIHR and Venice Commission recommend that the Code be amended to require
that the CEC develop, no later than 180 days before an election, a training
course for members of ZECs, LGECs, and VCCs.
This training course should consist of a minimum of eights hours training
in election administration, the Electoral Code, ethics, and other matters that
the CEC deems important for the administration of elections in Albania. This training course should be offered free
of charge to persons who meet the requirements to vote and should be offered
throughout Albania as frequently as necessary to ensure that there exists a
sufficient pool of trained election administrators. At the completion of the training course, a
test should be administered and those individuals who obtain a satisfactory
score shall be “certified” as election administrators. Only individuals with certification would be
eligible for appointment to ZECs, LGECs, and VCCs. As an incentive to attract individuals to
obtain certification, the Government of Albania should considering paying an
appropriate monetary amount to those who obtain certification. The CEC should also have the power to revoke
certification where an individual violates the law.
16. An additional problem with the Code is that
Articles 33, 35, and 41 have created a virtually uncontrollable forum for
“non-voting representatives of parties” to attempt to inject chaos and
confusion into election administration.
Although Article 154 of the Constitution provides that “electoral
subjects” appoint representatives to the CEC, there is no constitutional
requirement that “representatives of parties” be given a political forum at
every level of election administration to engage in obstruction of the
political processes. The OSCE/ODIHR and
Venice Commission recommend that Article 33 of the Code be amended to meet the
narrow requirements of Article 154 of the Constitution. Further, Articles 35 and 41 should be amended
to ensure that they are also narrowly drawn for consistency with Article
33. Finally, regardless of whether an
intervention occurs at the CEC, ZEC, or LGEC, the relevant election commission
should limit the time for interventions, taking into consideration other items
on the agenda and the number of requests for intervention. The OSCE/ODIHR further recommends that
Articles 30, 38, 44, and 47 be amended to specifically state that an election
commission shall at all times conduct meetings in a manner that ensures
professional, efficient, and dignified consideration of the public’s interest
in and right to genuine democratic elections.
17. Finally, it must be noted that many of the
deadlines in the Code, particularly those related to the preparation of voter
registers, designation of voting centres, and registration of political parties
and candidate are not realistic for professional and efficient election
administration. A proper election
requires preparation. Preparation takes
time. Most of the deadlines in the Code
are simply too compressed and all deadlines in the Code require review. The OSCE/ODIHR and Venice Commission
recommend that all deadlines in the Code be reviewed and adjusted as necessary
to ensure there is adequate time to prepare for all election processes.
18.
As it cannot be assumed that there will be a comprehensive reform of election
administration in Albania, specific comments are offered below to improve existing articles
regulating the CEC and lower election commissions.
19.
Article
154 of the Constitution of Albania establishes that the CEC is composed of
seven members, each with a seven year mandate. Two members are appointed by the
Assembly (Parliament), two by the President of the Republic, and three by the High
Council of Justice. Under the previous
legal framework, these three institutions were given wide discretion in
selecting members of the CEC, with the aim of assuring an independent and
non-political body. The new Electoral Code, however, in Article
22, gives full control of the nominating procedures to political parties, with
the result that three members come from the two major parties/political groups
on the governing side, three come from the two major parties/political groups
on the opposition side, and one member is consensually proposed by the major
parties on the governing and opposition sides.
20.
The new provisions for the appointment of members to the CEC are of
concern. These provisions expressly
limit the number of candidates that can be considered by the three
constitutional institutions when electing a member to fill a CEC vacancy. These
provisions limit the appointing institution’s constitutional prerogative to a
list of no more than two candidates nominated by non-Article 154 bodies
(“political parties/groups”). The phrase “no more than two” compounds
constitutional concerns as it permits the list to be limited to a single name,
thereby completely abrogating the constitutional prerogative of the three
appointing institutions. This transforms
these three constitutional institutions into mere “rubber stamps” for the
Article 154 CEC appointment process. The
OSCE/ODIHR has previously expressed concern about attempts to limit the Article
154 constitutional prerogatives granted the Assembly, President, and High
Council of Justice for electing CEC members.
21.
The involvement of non-Article 154 bodies in the election process of the
CEC might be acceptable, provided the overall process respects the
constitutional structure and prerogative that rests with the three Article 154
institutions (Assembly, President, and High Council of Justice) to elect
members of the CEC. However, the procedures established by these new provisions
in the Electoral Code significantly limit constitutional prerogative and, thus,
appear to be contrary to the constitutional structure established by Article
154 of the Constitution. The OSCE/ODIHR
and Venice Commission recommend that Article 22 of the Electoral Code be
reformulated in order to ensure that the involvement of the constitutional
Article 154 institutions in the CEC membership election process includes a
meaningful level of participation that respects the constitutional prerogatives
of these institutions.
22.
In addition to the constitutional issue presented, the new provisions
are problematic as they permit the two main parliamentary parties, through
their representatives on the CEC, to block decision making. This is due to the
requirement of qualified majority voting in the CEC on every issue of
significance. As a result, a de facto veto power has
been given to each of the two main political parties on every significant
issue. The OSCE/ODIHR and Venice Commission
recommend that Article 30 of the Code be amended to provide that a decision is
approved when a simple majority of all members votes in favour of the decision. This should apply to voting in all election
commissions, including the CEC, on all issues.
23.
The constitutionally questionable CEC appointment process and qualified
majority voting requirement appear to have resulted from a lack of confidence
in the CEC running so deep that the two major political parties deemed the new
provisions essential for the conduct of future elections. In order to strengthen confidence in the CEC
and increase CEC transparency, The OSCE/ODIHR and Venice Commission recommend
the following points, to the extent that they are not already expressly stated
in clear language in the Electoral Code, be specifically codified in the text
of the Electoral Code: (1) the CEC shall
publish written regulations governing its work, including how meetings will be
conducted, no later than 120 days before an election; (2) all meetings
of the CEC shall be public; (3) the CEC shall, no later than twenty-four (24)
hours before a meeting, publicly post at the main entrance to its office and
all of its offices in Albania a notice for each CEC meeting, and the notice
shall include an agenda of all items and matters to be considered at its
meeting; (4) any person has the right to be included on the agenda of the CEC
to discuss electoral issues, suffrage rights, or any other matter relevant to
the conduct of elections, but such a request must be made at least forty-eight
(48) hours in advance of a meeting and the CEC may limit the time for
presentations, taking into consideration other items on the agenda and the
number of requests for discussion; (5) during the entire time period after an
election date has been set and until final certification of the election
results, the CEC shall meet regularly at 9:00 a.m. every day and the CEC will
hold additional meetings as necessary during this period; (6) the CEC shall
thoroughly and completely consider all matters presented to it and, when
reaching a decision, the CEC shall first attempt to make a decision by
consensus and, should it be impossible to reach a decision by consensus, the
CEC shall take a formal vote and the decision is approved when a simple
majority of all members votes in favour of the decision; (7) every decision of
the CEC, whether by consensus or formal vote, shall within twenty-four (24)
hours be memorialised in a written form and signed by the Chairperson of the
CEC, and a copy of the written decision shall be maintained in the office of
the CEC Secretariat and available for public inspection and copying, and, as
soon as the written decision is signed by the Chairperson, it shall be forwarded
to the Secretariat where it shall be immediately recorded in the Secretariat’s
records with a notation of the date and time received by the Secretariat where,
after noting the date and time received, the Secretariat shall provide a
notated copy to all members of the Commission, each person, candidate, or
political party affected by the decision, the Secretary General of the Assembly, and any person who requests
a copy of the decision; (8) every member of the CEC shall publicly take an oath
administered by the President of the Republic, where the member affirms
to: (i) promote conditions conducive to the conduct of free,
fair, and democratic elections, (ii) ensure that the secrecy and integrity of
the vote are respected, (iii) refrain from politically influencing any voter,
(iv) perform all duties and functions with care, competence, honesty, and
courtesy, (v) maintain strict impartiality in carrying out duties and functions
and do nothing by way of action, attitude, manner or speech to give any other
impression, (vi) not commit or attempt any act of crime or conflict of interest
(including the commission or omission of an act in the performance of or in
connection with one’s duties in exchange for money, gift or promise of reward
from any candidates, political party, or any representative or agent of a
candidate or party), (vii) shall make every effort to oppose or combat any act
of crime or conflict of interest that is discovered in the course of their
duties, (viii) shall make every effort to attend meetings, training classes or
workshops that are set up to facilitate the carrying out of CEC functions, and
(ix) shall safeguard all election material entrusted to the member and assist
all observers and candidate and political party representatives engaged in legal
observation activities.
24.
Article 23 should be clarified concerning the rights and duties of a
member of the CEC. Clause (6) compels a member to vote for or against a
proposal and prohibits abstention. This provision is likely included due to the
new 5-2 voting requirement on some issues. However, this provision assumes that
there will never be a situation where a member should abstain due to an actual
or apparent conflict. This assumption is erroneous. The possibility exists that a member of the
CEC may have a relationship with a candidate or complainant that requires the
CEC member to abstain in order to maintain the appearance of propriety. This is
especially true since Article 24 provides that a member may be dismissed for
any behaviour or act that “discredits the position and the image of the CEC
member”. The OSCE/ODIHR and Venice Commission recommend that clause (6) of
Article 23 be amended to permit a CEC member to abstain, provided the member
explains the reason for abstention and the reason is due to an actual or
apparent conflict.
Further, clause (4) of Article 23 should be amended to require a member to also
vote “in accordance with the law” and not merely “following his convictions”.
25.
Article 24 provides eight separate grounds that would permit the
Parliament to dismiss a member of the CEC.
Article 24 is of questionable constitutional validity as it establishes
the right of the Parliament to dismiss members of the CEC where Article 154 of
the Constitution does not expressly grant this authority to the Parliament and
this power is not expressly granted in the constitutional articles regulating
the Parliament. The OSCE/ODIHR and Venice Commission
recommend that Article 24 be carefully reviewed and amended to ensure
compliance with the Constitution. .
26.
Article 25 provides in the first sentence of clause (2) that the CEC
Chairman advises of a vacancy in membership. The second sentence of the same
clause suggests that it can be either the CEC Chairman or Deputy Chairman who
advises of a vacancy in membership. Furthermore, it is not clear what is meant
in clause (2) with “the respective competent body” or how this body should publicly
announce the vacancy. The OSCE/ODIHR and Venice Commission recommend that
Article 25 be clarified.
27.
The provisions in clause (3) of Article 27 are confusing and cannot be
clearly applied. Sub-clause (a) of
clause (3) references clause (3), which makes no sense. It is likely intended
to reference sub-clause (a) of clause (1), except that there should only be six
ballots instead of seven since the Chairman supposedly has already been
elected. The OSCE/ODIHR and Venice Commission recommend that Article 27 be
clarified.
28.
Article 29 sets forth that the CEC declares the result of elections at a
national level. However, according to Articles 37 and 43 the results are
declared by the ZECs and the LGECs in their respective areas. According to
Article 153 of the Constitution the declaration of any election results appears
to be the prerogative of the CEC. Thus, the question arises as to when the
result is final. The OSCE/ODIHR and Venice Commission recommend Articles 29,
37, and 43 be amended so that they are consistent.
29.
Article 30 stipulates in clause (5) that normative acts, registration of
the candidates and subjects, declaration of election results and winners, and
decisions related to complaints on the declaration of the results are approved
when no less than five members of the CEC vote in favour. Every other decision is taken by a majority
of the members present. Further, all decisions must be signed by the chairman
and the deputy chairman and by all the members that are willing to sign. These
requirements led to deadlock in CEC decision making on several occasions during
the 2003 local government elections. The 5-2 voting requirement permits
“militant” commission members to block the electoral process and bring
democratic processes to a complete halt, placing in limbo the suffrage rights
of voters. Also in clause (5) it is
stipulated that decisions of the CEC must be signed by the chairman and the
deputy chairman. However, it may be the case that either one is ill or cannot
attend the meeting for other reasons. During the 2003 local government
elections, the CEC functioned without a deputy chairman. The OSCE/ODIHR and
Venice Commission recommend that clause (5) of Article 30 be amended to provide
that a decision is approved when a simple majority of all members of the CEC
votes in favour of the decision and that this voting requirement apply to all
issues, and that the dual signing requirement be deleted.
30.
Clause (9) of Article 30 permits “when, due to
various reasons, the [CEC] meeting cannot proceed normally, the chairman and
deputy chairman have the right to suspend its continuation for up to 24
hours”. This provision is not only
vague, but is subject to abuse as it permits delay on a decision where the
chairman or deputy chairman realizes he or she will be on the losing side of a
vote on a decision. Delaying the vote
permits the losing side to seek to apply pressure through other means and
disrupts attempts to observe decision making of the CEC. The OSCE/ODIHR and Venice Commission
recommend that clause (9) of Article 30 be deleted from the Code. A CEC meeting should continue until all
agenda items that can be addressed have been addressed, and then the meeting
should be adjourned until the next scheduled meeting, which will have a new
agenda that is made available publicly and which may include matters that could
not be concluded at the prior meeting.
31.
Clause (10) of Article 30 allows the CEC to meet in private to discuss
“CEC administration”. This provision is contrary to the general principle of
transparency of all election processes. The term “administration” certainly
encompasses administration of the election processes. All meetings of the CEC must be open to the
public. Transparency is a critical
cornerstone for free, fair, and genuine democratic elections. The OSCE/ODIHR
and Venice Commission recommend that clause (10) of Article 30 be amended accordingly.
32.
The new Electoral Code has significantly changed the method for forming
lower election commissions.
Under the new Code, six members are appointed in a similar, but not identical,
fashion used for the formation of the CEC. In addition, the seventh member of each lower
election commission is assigned to the largest governing and opposition
parliamentary parties on a fifty-fifty basis, determined by “random selection”.
33.
With the exception of the constitutional issue on the formation of the
CEC, the comments and recommendations stated previously concerning formation of
the CEC (Article 22) are also applicable to Article 34 regulating the formation
of Zone Election Commissions. A
qualified majority voting requirement on significant issues also applies to the
ZECs (Article 38). The OSCE/ODIHR and
Venice Commission recommend that Articles 34 and 38 be amended to loosen two
party domination of the ZECs and avoid deadlock on decisions.
34.
The comments stated above concerning formation of the CEC (Article 22)
and ZECs (Article 34) are also applicable to Article 40 regulating the
formation of Local Government Election Commissions. A qualified majority voting requirement on
significant issues also applies to the LGECs (Article 44). The OSCE/ODIHR and Venice Commission
recommend that Articles 40 and 44 be amended to loosen two party domination of
the LGECs and avoid deadlock on decisions.
35.
Article 45 provides that for parliamentary elections the Voting Centre
Commission is composed in accordance with the manner and the criteria provided
by Article 34 for the ZEC. For local government elections, the VCC is composed
in accordance with the manner and criteria provided by Article 40 for the LGEC.
Thus, concerns stated above concerning formation of the ZEC and LGEC are also
applicable to formation of the VCC. The
OSCE/ODIHR and Venice Commission recommend that Article 45 be amended to loosen
two party domination of the VCCs.
36.
Clause (7) of Article 45 states that a non-voting representative of a
political party in a VCC has the rights specified in Part Seven of the Code.
However, clause (8) does not contain a similar provision for the representative
of an independent candidate. The OSCE/ODIHR and Venice Commission recommend
that clause (8) be amended to state that the representative of an independent
candidate has the same rights specified.
37.
A qualified majority voting requirement also applies to the VCCs
(Article 47). Thus, the comments and
recommendations stated previously concerning qualified majority voting on the
CEC (Article 30), ZECs (Article 38), and LGECs (Article 44) are also applicable
to VCCs. The OSCE/ODIHR and Venice Commission
recommend that Article 47 be amended to avoid deadlock on decisions.
38.
Clause (3) of Article 47 provides that if the “VCC fails to reach a
decision, the case is sent immediately for examination to the ZEC or, as
appropriate, the respective LGEC”. The practicality of such a requirement is
questionable since the VCC will make several decisions concerning the validity
of ballots. Further, it allows the VCC to refuse to make decisions. The OSCE/ODIHR and Venice Commission
recommend that Article 47 be amended to provide that, where the commission is
deciding a request or complaint, if a decision is not approved by the necessary
number of votes, then the initial request that gave rise to the issue shall be
considered denied, and this decision of denial may be subject to any review
provided by the complaints and appeals process.
This recommendation is also applicable to similar “immediate”
requirements in Articles 38 and 44, as it concerns ZECs and LGECs. Obviously, however, some refusals to make a
decision, such as the declaration of results, cannot have such a default
provision and will require a decision by the higher election commission.
39.
Clause (3) of Article 48 appears to be inconsistent with clause (2) of
Article 93. The OSCE/ODIHR and Venice Commission recommend that one of these
clauses be amended to ensure that it is clear what is the deadline for delivery
of voting materials to VCCs.
F. Voter
Registers
40.
Voter registers have been a source of controversy in recent elections in
Albania. There have been various
efforts to improve the registers, but all have been less than satisfactory and
before the 2003 local government elections there remained a lack of confidence
in the accuracy of the registers on the part of some political parties. The
bipartisan committee discussed the issue in some detail in 2003 and decided
that, while the existing voter register should be used as the basis for the
2003 local government elections, civil registers should be the sole source for voter
lists in the 2005 parliamentary elections. This agreement was reflected in the
amendments to the Electoral Code.
However, the Code should include some transitory contingency provisions
to address the possibility that civil registers may not be adequately updated
in time for the 2005 parliamentary elections.
41.
Although the Electoral Code reflects a consensus agreement on voter
registers and there has been a great improvement in their accuracy, there
remain problems with the current articles regulating voter registers. First,
the text does not present the process for verifying the accuracy of and
correcting voter registers (“updating”) in a chronological order that is based
on the first required step of publishing the boundaries of polling units and
the physical locations of voting centres within polling units. The Code does not sufficiently include these
fundamental building blocks in the “updating” process. The accuracy of voter registers is directly
tied to the fundamental building block of the polling unit. In fact, it is simply impossible to verify
the accuracy of the voter registers without the prior establishment of polling
unit boundaries, and a voter cannot ascertain correct registration without
knowing the boundaries as well.
Regrettably, although the Code recognizes the need to establish polling
units (Articles 73, 94, and 95), the Code fails to require the establishment
and publication of polling unit boundaries and voting centre locations as a
critical first step in verifying the accuracy of voter registers.
42.
As stated in the report of the Congress of Local and Regional
Authorities of the Council of Europe on the 2003 local elections, last minute
amendments to the registers should be avoided. As long as the accuracy of the
registers is problematic, a way of reducing the number of disenfranchised
voters through arrangements which would enable citizens whose names are not on
the voter's registers or are miss-spelt to vote would be to enable those voters
to register on a supplementary list 15 days before the election or even on the
election day (this would require a district court to sit during the election
day).
43.
It is critical that the next set of amendments address these fundamental
building blocks (mapping and establishment of polling units and voting centres)
when addressing the voter registration and updating process, and provide details
for all voter registration and updating processes. Further, they must be
addressed early in the process, in a fully transparent manner, so that voters
and election officials involved in updating do indeed know whether a voter is,
as stated in Article 58, “registered in the wrong voting centre”. The OSCE/ODIHR and Venice Commission
recommend that the Code be amended to require the establishment and publication
of polling unit boundaries and voting centre locations as a critical first step
in verifying the accuracy of voter registers.
44.
Secondly, the text of the Code has gaps and omissions in the process
that will force election administrators to supply solutions that are not
specifically stated in the Code. For
example, it is not clear how it can be verified that a voter has de-registered
in the place of his or her domicile before registering in the place of his or
her residence, as set forth in clause (2) of Article 50. The Code should state all details for voter
registration and updating so that voters, political parties, candidates, and
observers can verify that the law has been followed. The Code should clearly
specify what document must be presented to change registration, including from
whom it must be obtained and to whom it must be given, and within what period
of time. The OSCE/ODIHR and Venice
Commission recommend that the Code be amended to provide every necessary detail
for voter registration and updating.
45.
Article 56 provides that the LGEC organizes the notification of every
voter, an important new instrument for providing voters with information on the
voter registers and their polling unit allocation, the lack of which was a
major defect of the previous system. It does not, however, stipulate how such
notification has to take place. The OSCE/ODIHR and Venice Commission recommend
that this be clarified and notification implemented uniformly across the
relevant constituency or areas where the election is to occur.
46.
Article 62 stipulates that voter registers for special institutions must
be delivered to the ZEC or LGEC two days before the election. It is not clear
how the voter register is to be compiled and how a check for double
registration can be performed in the last two days before the elections – or
how any double registrations can be removed. This opens a potential for abuse
of the system. The OSCE/ODIHR and Venice Commission recommend that clause (1)
of Article 62 be amended to address these concerns.
47.
Articles 18 and 19 of the Electoral Code provide broad rights for
observers, including the right to examine electoral material and
documentation. The Electoral Code also
provides that a complaint can be filed when an application for observer
accreditation is refused, but makes clear that domestic and international
observers must not violate the secrecy of the vote or hamper the process of
voting and election administration.
48.
Articles 18 and 19 do not include representatives of political
parties or candidates as “observers”.
This may be due to the fact that political parties and candidates have
the right to appoint a “temporary representative” to the CEC (Article 33), ZEC
(Article 35), LGEC (Article 41), and VCC (Article 45). However, it is not clear that the “temporary
representative” provided in these articles are the same as the Article 97
“representatives of the electoral subjects”.
The text of Article 97 suggests that there might be a category of
“political party observer” that is distinct from the “temporary
representative”. If this is the case,
and as Articles 18 and 19 do not address the rights of a “political party
observer”, there is the possibility that the Code recognizes a “political party
observer” without specifically stating the rights and duties of such an
observer. Article 19 allows
observers « to submit written comments to the commissions for every kind
of irregularity that they notice » ; it would be logical to give such
rights to party delegates and only allow observers to take notes and refer back
to their organization. On the other hand it is not said in either of the
articles that observers can talk to people which, of course, is as important as
watching ; this omission could be considered by a commission chairman as a
reason to ask to leave an observer who is chatting with people in a polling
station. The OSCE/ODIHR and Venice Commission recommend that this be
clarified.
49.
Clause (3) of Article 18 implies, in the English text, that one must
meet the requirements for being a voter in Albaniain order to be an observer. Although this may be an acceptable requirement for
domestic observers, it presents an obvious problem for foreign observers who
cannot meet the requirements for being a voter in Albania. The OSCE/ODIHR and Venice Commission
recommend that this be clarified.
50.
Clause (4) of Article 18 sets a deadline for the submission of requests
for accreditation to the CEC. The clause should also provide a deadline on how
early requests can be submitted. The OSCE/ODIHR and Venice Commission recommend
that Article 18 be amended to provide that an application for accreditation can
be submitted as early as 45 days before an election. This time frame is not too
early as observer organizations should be engaged early in the process in order
to observe all election processes. For similar reasons, clause (1) of Article
19 should be expanded to include the right to attend all meetings of election commissions
and observe all election processes. The current phrase “preparation and conduct
of elections” could be applied to limit observation of the presentation of
complaints in election commissions and resolution of such complaints in
election commissions. The OSCE/ODIHR and Venice Commission recommend that
Articles 18 and 19 be accordingly amended.
51.
Article 64 of the Constitution of Albania establishes five
constitutional principles regulating the electoral system for the Parliament:
▪ the Parliament
consists of 140 deputies;
▪ one hundred
deputies are elected directly in single member electoral zones;
▪ forty deputies are elected from
multi-name lists of parties or party coalitions according to their ranking;
▪ the total number of deputies of a party or a party
coalition shall be, to the closest possible extent, proportional to the valid
votes won by them on the national scale in the first round of elections; and
▪ parties that receive less than 2.5 per cent, and party
coalitions that receive less than 4 per cent, of the valid votes on the
national scale in the first round of elections do not benefit from the
respective multi-name list.
52. Thus, Article 64 of the Constitution of
Albania establishes a type of mixed member proportional representation system
that contemplates an overall proportional distribution of mandates.
53. In the 2001 Parliamentary elections, the
allocation of mandates was extremely controversial and subject to legitimate
criticism. One factor that contributed to this controversy is the complexity of
the allocation formula stated in the Electoral Code.
54.
The complexity of the allocation formula stated in Articles 65 to 68 of
the Code has not been addressed in a positive manner by the 2003 amendments. In
fact, the allocation formula has been made even more complex and difficult for
a voter or observer to understand. The 2003 amendments have turned a complex
system into a more complex one that uses “composed multi-name lists” and “joint
multi-name lists” instead of a single list of candidates presented by a
political party or coalition. The
OSCE/ODIHR and Venice Commission recommend that the Electoral Code be amended
in order to establish a less complex electoral system that is in conformity
with all requirements of Article 64 of the
Constitution, transparent, easily implemented, and clearly and completely
understood by voters.
55.
Article 70 governs the composition of the Electoral Zone Boundary
Commission, which establishes the boundaries of the 100 single member electoral
zones for the Parliament. This article has been amended to expand the number of
members on the commission and involves political parties in the appointment of
the additional members. This is a
positive amendment which should help the impartial drawing of boundaries.
56.
The deadlines provided in Articles 70 to 75 for the establishment of
electoral zones do not ensure that zones are established in a timely manner
before an election. It is important that
electoral constituencies be established sufficiently in advance of
elections. This is necessary to ensure
that political parties and prospective candidates have the opportunity to
become familiar with the demographics of constituencies in order to determine
the viability of competing in a particular constituency and to engage in
preliminary planning for the election campaign.
The timeframe stated in these articles allows establishment of
constituencies relatively shortly before an election. From a practical point of
view, it would be more reasonable to redraw constituencies every ten years. The
maximum deviation of 5 % (Article 73.1) seems very optimistic. The OSCE/ODIHR
and Venice Commission recommend that the Code provide that all constituencies
must be established and published at least six months before an election.
57.
Article 73, which governs the criteria for the designation of electoral
zone boundaries, should be clarified. The first sentence of Article 73, in the
English text, provides that the basis for determining the boundaries of
electoral zones is the number of voters “who have taken part in voting in each
electoral unit in the most recent elections prior to the meeting of the
Commission”. However, the next sentence in the article appears to use a
different principle, based on “the average number of the voters at a national
level”. This would suggest that the basis for determining the boundaries of
electoral zones is the number of registered voters, regardless of voter turnout
in the most recent elections. The
OSCE/ODIHR and Venice Commission recommend that Article 73 be reformulated so
that the principle that is the basis for determining the size of electoral
zones is consistent throughout the article.
58.
Article 74 provides that the Assembly can either accept the final report
of the Electoral Zone Boundary Commission or return the report to the
Commission for reconsideration. The
Commission is then required to submit a second report for the Assembly to
examine. However, Article 74 does not
state whether the Assembly has any discretion when considering the second
report or if it must approve the second report.
The OSCE/ODIHR and Venice Commission recommend that Article 74 be
clarified to state what discretion the Assembly has, if any, when considering
the second report.
59.
Article 77 provides that the mayor of the commune or municipality is the
candidate who receives a majority of the valid votes cast. Members of municipal
and commune councils are elected on the basis of a proportional representation
system that requires political parties and coalitions to submit candidate
lists.
However, Article 77 does provide that independent candidates may stand in
elections to the organs of local government and addresses the manner of
allocation of mandates when an independent candidate obtains the necessary
quota of votes.
60.
According to Article 109 of the Constitution, the local councils and
mayors are elected every three years. This short term – much shorter than in
most European countries where it is four to six years – should be considered,
since new mayors and local councillors sometime need to get acquainted with the
work and they hardly have enough time to implement efficiently their projects
before it is time to start campaigning again
61.
Article 119, clause (6) sets 15 March of each year as the deadline for
the completion of all legal procedures for a request for a referendum
election. However, Article 127, clause
(2) establishes the period between 1 January and 30 November as the time period
for submitting the 50,000 supporting signatures required for a referendum
election. Articles 128 and 129 provide procedures related to the request which
might require up to 195 days, thereby greatly exceeding the 15 March deadline
established in Article 119, clause (6). The OSCE/ODIHR and Venice Commission
recommend that the relevant deadlines and inconsistent references related to
referenda elections be corrected.
62.
Article 126 (3) of the Electoral Code recognizes the right to abrogate parts
of a law through a general referendum.
This appears to conflict with Article 150 of the Constitution as the
latter grants the right to abrogate a law- not the right to rewrite portions
through selective referendum abrogation. The OSCE/ODIHR and Venice Commission
recommend that Article 126 be amended in order to comply with Article 150,
clause (1) of the Constitution.
63.
Article 125 (4) provides that constitutional amendments submitted to
referendum according to section 5 of Article 177 of the Constitution are
rejected if more than half of all voters registered in the National Registry of
Voters vote against them. This makes the rejection very difficult. Those
favourable to the text could even call for abstention and only the opponents
would go and vote, which would not be in conformity with the spirit of the
principle of secret voting.
64.
It is not clear what is the rational behind Article 127 clause (2). It
appears to imply that the referendum concerned can only be held in December of
each year since the signatures for such referendum have to be deposited in the
period January-November of each year. The OSCE/ODIHR and Venice Commission
recommend that this be clarified.
65.
Clause (3) of Article 129 grants the President of Albania the power to
“decide that a referendum requested should not be held” and, after making such
a decision, “advises the CEC in writing of his reasons, which the CEC transmits
to the initiators”. This is tantamount
to granting the President power to overrule the Constitutional Court’s decision under clause (2) and empowering
the President to quash the constitutional rights of the 50,000 citizens who
initiated the referendum. The OSCE/ODIHR
and Venice Commission recommend that Article 129 be amended in order to comply
with Articles 150 and 152 of the Constitution. It should also be noted that clause (2) of
Article 129 stipulates that the Constitutional Courtdecides whether a request for a referendum is formulated in accordance with
clauses (3) and (5) of Article 126.
However, it appears that the Constitutional Court should also decide whether a request for a
referendum contains the data specified in clause (4) of Article 126. The OSCE/ODIHR and Venice Commission
recommend that this be clarified.
66.
There are several provisions in the Code that raise concern as to the
degree of transparency for the awarding of list mandates to candidates. There is also concern that ambiguity in Code
provisions would permit political parties and coalitions to change the order of
candidates on a list after elections.
67.
Clause (4) of Article 84 permits political parties who are members of a
coalition to enter into an agreement that contains “the formula for defining
the ‘final ranking’ of multi-name list candidates”. It does not seem possible that there should
be a formula for “final ranking”, as the “final ranking” should be the order of
the names on the multi-name list that is submitted to the CEC. However, this concern is reinforced by clause
(3) of Article 86, which provides that the “names on the multi-name lists that
have been certified may not be changed.”
However, since clause (3) of Article 86 fails to state that the “order
of names” may not be changed, and as clause (4) of Article 84 recognizes a
“formula” for defining the “final ranking” of multi-name list candidates, the
concern is raised that these articles allow for coalition party members to
change the order of allocation and re-order the ranking of lists previously
submitted to the CEC. This concern is
reinforced by the fact that Article 77 (local government elections)
specifically states that “the candidates of parties or coalitions are elected
to the local councils according to the order of the respective multi-name list”
and Article 68 (compensatory mandates for Parliament) does not have a similar
requirement.
68.
It is a basic democratic principle that a voter is entitled to know the
consequences of his/her vote. It is also
a basic democratic principle that a vote be counted for the candidate for whom
the voter marks his/her ballot. When
closed lists of candidates are involved, this requires that a vote for the list
first benefit the first ranked candidate on the list. These basic principles are embodied in Paragraph
7.9 of the 1990 OSCE Copenhagen Document: “candidates who obtain the necessary
number of votes required by law are duly installed in office and are permitted
to remain in office until their term expires or is otherwise brought to an end
in a manner that is regulated by law in conformity with democratic
parliamentary and constitutional procedures”.
To the extent that clause (4) of Article 84 would permit a re-ranking or
“final” ranking of candidates to occur after a voter casts the ballot, then
Article 84 would be contrary to OSCE commitments and international
standards. The OSCE/ODIHR and Venice
Commission recommend that these articles be carefully reviewed and amended to
ensure that there is no possibility for the order of candidates on a list after
the list is submitted to the CEC.
69.
Clauses (2) and (3) of Article 14 assume that every deputy vacancy can
be filled by the next candidate on a multi-name list. However, this will not always be the case as
a political party has the right to present a single candidate in a single
electoral zone without submitting a multi-name list. The OSCE/ODIHR and Venice
Commission recommend that Article 14 clauses (2) and (3) be amended to address
this problem.
70.
Article 15 clause (1) is not consistent with the Article 3 principles of
freedom of elections and non-discrimination, as it places an obligation on
selected parties and coalitions. This
provision is also contrary to OSCE commitments and other international
standards concerning non-discrimination.
The OSCE/ODIHR and Venice Commission recommend that Article 15 be amended to be
consistent with other principles in the Electoral Code and to respect OSCE
commitments.
71.
Articles 78 to 89 describe the steps to be taken for nomination of
candidates, including their possible substitution. The system for nomination
and registration of candidates is relatively clear and simple. Candidates and
lists require signatures of voters for their nomination to be approved,
depending on the kind of elections, and with exemptions for sitting mayors,
independent councillors and those parties already represented in the parliament
or the council assembly. In a welcome amendment, the deadline for registration
now precedes the start of the official campaign.
72.
Articles 133 and 141 are not consistent with each other. According to
Article 133 “the electoral campaign starts 30 days before election date and
ends 24 hours before the beginning of voting”. Considering that voting starts
at 07:00 hours, the electoral campaigntherefore ends at 07:00 hours on the
morning before election day. However, according to Article 141 there is an
electoral blackout “during the last 24 hours before Election Day”. That means
that effectively no electoral campaign can be held as from 00:00 hours the day before election day. Furthermore, both
articles leave open the possibility to campaign on election day itself – the
law implies that it is not allowed but it does not explicitly state so. The
OSCE/ODIHR and Venice Commission recommend that Articles 133 and 141 be amended
so that they are consistent with each other and expressly prohibit campaigning
on election day and the day before.
73.
Clause (2) of Article 41 establishes sanctions for media outlets which
violate the electoral blackout provisions, but fails to establish any sanction
for the electoral subject whose action initiated this legal violation. The
OSCE/ODIHR and Venice Commission recommend that this provision be expanded to
address this concern.
74.
Article 137 requires that, during political airtime of news broadcasts,
the Public Radio and Television Broadcaster must apply an equal time ratio for
all parliamentary parties that in the previous parliamentary elections have
obtained up to 20% of the seats in the Parliament. For those parties that have
obtained more than 20% of the seats, the airtime, which is allocated equally,
is doubled. This text in clause (1) led to problems during the 2003 local
government elections. It was interpreted in such a way that the main parties
were given twice the air time of all other parties together, while the text
appears to indicate that parties with more than 20% in the Assembly are
entitled to twice the amount of airtime that is allocated to each smaller party
individually. The OSCE/ODIHR and Venice Commission
recommend that Article 137 be clarified so that it is clear that the latter
interpretation is the legal principle codified in the law.
75.
Article 140 provides that the electoral campaign on private radio and
television stations is conducted pursuant to a number of parameters stipulated
in the Code. The comment on Article 137 for public broadcasters also applies to
the airtime allocated to the different parties by private broadcasters, as set
forth in clause (4) of Article 140. The OSCE/ODIHR and Venice Commission
recommend that Article 140 also be clarified.
76.
On the basis of the last observation report by the CLRAE, it is
suggested to avoid too strict an interpretation of the media electoral
legislation, in particular, the monitoring board working with stopwatches,
which makes a very difficult environment for the media to operate
77.
Article 145 of the Electoral Code regulates public funding of political
parties for the electoral campaign. It, however, does not regulate public
funding of independent candidates. The OSCE/ODIHR and Venice Commission
recommend that Article 145 be amended in order to also include independent
candidates .
78.
Furthermore, this Part of the Code only regulates the funding of
political parties, but not their campaign spending and financial disclosure.
Campaign spending and financial disclosure are regulated, but not in sufficient
detail, in the Constitution and the Law on Political Parties, which the SP and
DP have committed themselves to reviewing jointly before the next parliamentary
election, The OSCE/ODIHR and Venice Commission
recommend that regulation of campaign spending and financial disclosure be
included in a detailed provision in the Electoral Code to ensure the
transparent financing and campaign spending of political subjects taking part
in the elections.
79.
Article 145 does not establish a deadline for the distribution of public
campaign funds to political parties.
Public funding is of little benefit if it is distributed after the
electoral campaign. The OSCE/ODIHR and
Venice Commission recommend that Article 145 be amended to require the timely
distribution of public campaign funds to electoral contestants.
80.
According to Article 90, the ballot consists of two separate sections
and the voter has a vote for each ballot section. This can lead to problematic
situations, as was experienced during the 2003 local government elections. In
particular during the counting process, Voting Centre Commissions often did not
know how to deal with ballots on which a vote was validly cast on one ballot
section but not on the other ballot section.
The OSCE/ODIHR and Venice Commission recommend that the “double” ballot be
reconsidered; and that the Electoral Code should describe in detail how the
Voting Centre Commission is to count a ballot that contains one valid vote and
one invalid vote.
81.
Article 91 provides that failure to sign the ballot by the chairman or
the vice chairman of the Voting Centre Commission does not constitute a reason
not to begin with the voting process. The intent of this provision is not
clear. Further, under Article 109 clause
(1)(dh)(i), a ballot is considered “irregular” if any of the required signatures
is missing. Giving a voter a ballot that will later be considered “irregular”
is equivalent to denying the voter the right of suffrage. The OSCE/ODIHR and Venice Commission
recommend that Articles 91 and 109 be amended and all inconsistencies in the
two articles corrected, and that under no circumstance should the Code permit a
ballot to be given to a voter that will considered “irregular” when it is
counted.
82.
Article 92 provides that the names of candidates “are placed on the
ballot according to the alphabetical order of their name.” Empirical studies have shown that some voters
simply vote for the first name on the ballot without considering the rest of
the names on the ballot. Thus, a
candidate whose name begins with a letter found at the beginning of the alphabet
has an advantage over a candidate whose name begins with a letter found at the
end of the alphabet. The OSCE/ODIHR and
Venice Commission recommend that Article 92 be amended to provide that the
order of candidates on the ballot be chosen by lot instead of by alphabetical
order. Article 92 (4) says
that « the voter marks in the special place ». The word
«in » has already lead in other countries to fraud by declaring the ballot
invalid if the cross or sign was not exactly inside the special place, that is
went beyond the limit of « the special place ». The wording should be
changed.
83.
The voting procedure is quite simple apart for the double signature and
the stamping of the rear side of the envelop. As a general rule no official
should touch a ballot when it is known to whom it will be given. The way one of
the signature is made or the stamp applied could enable to identify a voter
during the vote count. There is a school of thought which believes that
complicated counting procedures do away with fraud. Practice has shown that it
is not the case. Complicated procedures lead to mistakes, reduce attention of
observers and thus lead to an easy way to fraud. Only 3 figures are
important : the number of signatures, the number of ballots in the box and
the returned ballots ; those figures are only available once the ballot
box is opened. Article 109 introduces a first check (1 a, 1 b, 1 c) which
includes the numbering on the stubs which can only be hastily done because
everyone is anxiously waiting for the ballot box to be opened ; this
procedure can be criticized but much more complicated procedures have been
found and are still found in other countries. It should be well known and
taught that the only way to reduce fraud during voting and counting procedures
is for all acts to be simple and seen by every one who is admitted into the
voting center.
84.
Clause (5) of Article 100 requires that a voter be marked on the left
hand with a special ink prior to receiving a ballot. However, there is no
requirement that each voter be checked for special ink. If the use of special
ink is intended to be more than a “message” to voters and is intended to be a
true measure against double voting, then the Code must also require that each
voter be checked for special ink prior to receiving a ballot. The OSCE/ODIHR
and Venice Commission recommend that Article 100 be amended accordingly.
85.
Article 100, clause (6) states that a voter who is in possession of a
court decision to vote in a specific voting centre is allowed to vote even if
the voter is not on the voter register.
It is not clear if the court decision foreseen in clause (6) of Article
100 refers to a district court decision on a LGEC decision during the revision
process (clause (6) of Article 57), or if this is an additional mechanism to
ensure the right of suffrage. The
OSCE/ODIHR and Venice Commission recommend that clause (6) of Article 100 be
clarified and, if this is an additional mechanism, then the clause should
identify the competent court for issuing the decision and what procedures and
deadlines are to be applied.
86. Article 103 regulates voting by a voter who
cannot vote without assistance. A significant problem is presented in this
article, since it requires the identification of such voters in official state
documents (voter registers) “with the type and category of disability”. The
labelling of voters as having a specific disability is contrary to
international standards and serves to discourage disabled voters from
exercising the human right of suffrage. The OSCE/ODIHR strongly recommends that
the second sentence of clause (6) of Article 103 be deleted in its
entirety.
87.
Article
104 : the chairman or his substitute should call in security. In case of
disorder one person has to take a decision and not a commission who might start
debating at a time when a quick decision has to be taken.
88. It is not clear what is meant in Article 105
clause (3) with “an observer for a candidate” who is not an accredited
representative. The OSCE/ODIHR and Venice Commission recommend that this be
clarified.
89. Article 109 in clause (1) under (c)
stipulates that the Voting Centre Commission must ensure that the number of
ballots used corresponds to the number of voters who voted according to the register.
However, the article does not regulate what the commission should do if these
numbers do not correspond, as happened regularly in the 2003 local government
elections. The OSCE/ODIHR and Venice Commission recommend that this be
clarified.
90. Clause (1) under (i) of Article 109 gives the
Voting Centre Commission a lengthy period of time to deliver the ballot box and
the envelope containing the official records to the higher level of election
administration, where the results of the different voting centres are to be
tabulated. The relevant material should be delivered as soon as possible after
the count, with an exception for the hours of the night. The OSCE/ODIHR and
Venice Commission recommend that Article 109 be amended accordingly.
91.
The law does not make a clear distinction between normal LGECs and
Tirana Municipal Borough LGECs.
As was evidenced during the 2003 local government elections, this can lead to
confusion at both the LGEC and VCC level. The OSCE/ODIHR and Venice Commission
recommend that the Electoral Code, and in particular the Part on LGECs,
describe clearly the different steps to be taken by LGECs and VCCs in Tirana
for the different elections.
92.
Clause (1) under (b) of Article 110 describes that the ZEC or LGEC must
check the contents of the ballot boxes it receives. In the summing up the seal
of the Voting Centre Commission (not to be confused with the seal on the ballot
box that is recorded in the official records) is missing, while according to
Article 109 clause (1) under (gj) the seal must be placed in the ballot box. The
OSCE/ODIHR and Venice Commission recommend that Article 110 be amended
accordingly.
93.
Pursuant to Articles 111 and 114, a recount can be requested in
elections for deputy or for mayor, but not in elections for local councils. It
is unclear why no recount would be allowed for local council elections. The
OSCE/ODIHR and Venice Commission recommend that Article 111 be amended in order
to allow for recounts in all local council elections.
94.
Further, Article 111 stipulates who can request a recount and in which
situation. It however fails to stipulate that in case of such a request the
relevant ZEC or LGEC has to conduct a recount – instead of having a
discretionary authority. As a result, at the 2003 local government elections,
in at least one case a validly requested recount was denied by the relevant
LGEC. The OSCE/ODIHR and Venice Commission recommend that Article 111 stipulate
explicitly that the relevant election commission must conduct a recount in case
of a request in accordance with clause (1).
95.
Although it may be reasonable for general elections, the 150 votes
margin for requesting a recount (Article 111) can lead to a substantial number
of recounts for local government elections, as occurred during 2003 local
government elections. In small communes where the number of voters is low, the
150 votes margin can constitute a significant margin of victory, while for the
sake of the legal provision, second ranked candidates may request a recount.
The OSCE/ODIHR and Venice Commission recommend that Article 111 be amended to
provide that, instead of the number 150, a “sliding scale” based on the
population of voters in a local government unit, or a fixed percentage, be the
legal standard used for determining when a recount is appropriate.
96.
Article 113 clause (2) stipulates that before the recount the ZEC or
LGEC must check whether the seal on each ballot box is the same as the one
recorded in the official register, and that if a seal is not the same, the
ballot box concerned should not be opened. However, it does not describe what
then has to happen with those ballot boxes that remain closed. Does this mean
that the votes inside are not recounted and are therefore not included in the
result? The OSCE/ODIHR and Venice Commission recommend that this be clarified.
97.
Article 115 stipulates that “decisions taken during a recount of ballot
papers are final, while the results announced can be appealed”. It is not clear
what this means. Does this mean that ballots can no longer be examined by the CEC
or the Electoral College at a later stage? The OSCE/ODIHR and Venice Commission
recommend that this be clarified.
98.
The Electoral Code does not distinguish between preliminary results and
final results. The OSCE/ODIHR and Venice Commission recommend that the Code be
amended to specifically require: (1) LGECs and ZECs to undertake and publish an
immediate preliminary tabulation of the results contained in each VCC results
protocol before commencing official verification of election materials; and (2)
publication of preliminary results broken down by voting centre by LGECs and
ZECs within 12 hours after receipt of the last VCC protocol, and by the CEC
within 24 hours after receipt of the last LGEC or ZEC protocol.
99.
Furthermore, due to past experience, the OSCE/ODIHR and Venice Commission recommend the introduction of
more precise and strong rules in order to avoid “family vote” and to ensure the
individual right to vote for women.
100.
Military personnel should vote at their place of residence whenever
possible.
The OSCE/ODIHR and Venice Commission
recommend deleting Article 107 (1) and applying the rule of Article 107
(2) to all elections.
101.
For local elections, the
OSCE/ODIHR and Venice Commission recommend separating the different
ballot papers for the election of mayors and those for the election of the
local councillors and giving different colours in order to facilitate the vote
counting as well as increasing clarity for the voters themselves.
102.
Article 117 provides for the invalidation of elections in certain voting
centres, election units, or in the whole territory of the Republic of Albania. However, Article 117 fails to take into
account the use of two ballot sections in elections and would appear to permit
partial rerun elections for one ballot section but not the other ballot section
cast in a voting centre. Article 117 is too vague and does not provide
details on how or which “elections (ballot section)” are to be declared
“invalid”. The OSCE/ODIHR and Venice
Commission recommend that Article 117 be amended to provide all details for
determining invalidity and that there be no possibility for rerun elections on
one ballot section but not all ballot sections cast in a specified voting
centre.
103.
Clause (4) of Article 117 states that “a CEC decision to invalidate the
elections in certain voting centres, election units, or in the whole territory
of the Republic of Albania”may be appealed “at a competent court”.
However, Article 162 provides that a CEC decision is appealed to the
Electoral College of the Court of Appeals of Tirana. The OSCE/ODIHR and Venice Commission
recommend that Article 117 be amended to be consistent with Article 162.
104.
Articles 146 through 179 provide adequate processes to ensure that
citizens, candidates, and political parties can seek meaningful redress in the
event of violation of legal rights.
These articles are a significant improvement over the legal framework
that existed before adoption of the Electoral Code. However, these articles can be improved and
recommendations are accordingly made below.
105. The Electoral Code should be amended to
provide more realistic deadlines for taking decisions on complaints and
appeals. Due account should be taken of
the requirement that an effective system of complaints and appeals must produce
results expeditiously. Further, the Electoral Code should specify all
procedural provisions that apply to the complaints and appeals process and
these provisions should take precedence over the procedural provisions of the
Administrative Code. These procedural provisions
should require that a complaint be supported with the necessary documentation,
ab initio, if it is to be considered by the LGEC, CEC and Electoral
College, thus permitting decisions to be made within the deadlines provided in
the law.
106.
Clause (1) of Article 146 states that an appeal can be lodged “within
two days from the date the decision was taken”, while Article 148 clause (1) speaks
of “within 48 hours of the date the decision was announced”. There could also be a difference between the
date the decision was taken and the date a decision is announced. The
OSCE/ODIHR and Venice Commission recommend that Article 146 and/or Article 148
be amended, as appropriate, to ensure consistency.
107.
According to Article 147 clause (3), the CEC will make a preliminary
verification of an appeal “within two days from its registration”. Article 149,
however, provides that the CEC will make a preliminary verification “no later
than 24 hours from the moment the appeal was deposited”. These provisions are,
assuming that registration takes place at the same time as the deposit of the
appeal, inconsistent. It is also
confusing that both concepts of registration and deposit are used next to each
other and, apparently, to describe the same action. The law should state very
clearly all steps to be taken from the moment the appeal reaches the CEC to the
moment the CEC takes and/or announces its decision. The OSCE/ODIHR and Venice Commission
recommend that this be clarified.
108.
Article 159 clause (1) stipulates that the CEC takes a final decision on
an appeal within three days from its registration. However, this is not
consistent with the deadlines in Articles 147 clause (3) and 151 clause (3).
The deadlines in these articles add up to three days (if the two days in
Article 147 clause (3) are fully used) before a hearing can be held, and then a
decision still has to be taken. Furthermore, a deadline of three days is not in
all circumstances realistic if at the same time the CEC wants to make an
informed judgment and uphold principles of due process. The OSCE/ODIHR and
Venice Commission recommend that Article 159 be amended to ensure consistency
in deadlines and that all deadlines provide sufficient time for due process to
all parties and the meaningful protection of legal rights.
109.
Article 162 limits the right to appeal a CEC decision to the Electoral
College to “electoral subjects”. This is
too limited and presents a problem as it limits access to appellate review to
this select group. Article 162 also
conflicts with Article 117, which permits certain CEC decisions to be appealed
by an “interested person”. The OSCE/ODIHR and Venice Commission recommend that
Articles 117 and 162 be reconciled and amended as necessary to provide the
right to appeal to voters and other electoral stakeholders who may have a
legitimate interest in seeking appellate review.
110.
Clause (2) of Article 171 provides that the Electoral College
adjudicates appeals in a judicial panel consisting of five judges. Article 171
further provides that appeals are distributed among the judges “according to
the procedures of this Code”. However, there are no provisions in the Electoral
Code that explain how appeals are distributed. The OSCE/ODIHR and Venice
Commission recommend that the Code be amended to expressly state how appeals
are distributed.
111.
Article 163 provides the procedure for selecting judges on the Electoral
College. Clause (3) gives four political parties each the right to remove one
of the judges selected by the initial lottery, in a secret manner. Although
this may be an acceptable interim provision to foster confidence of political
parties, it should be phased out as every effort should be taken to increase the
independence of the judiciary.
The absence of such a provision should not be problematic as a judge can be
challenged pursuant to Article 169 clause (2) and Article 170 clause (2) and
excluded from participating in the adjudication, in accordance with the
procedure in Article 171 clause (2). The OSCE/ODIHR and Venice Commission
recommend that Article 163 of the Electoral Code be reconsidered and that it
may be more appropriate to include this provision as a transitional one.
112.
In particular, it should be made clear that the renewal of the Electoral College takes place after and
not before the Parliamentary Elections, in order that the members of this body
be properly trained on time. The OSCE/ODIHR and Venice Commission recommend
that Article 164 (1) be revised in this sense.
113.
Articles 175 through 179 contain sanctions for violations of the
provisions of the Electoral Code.
Article 179 clause (1) stipulates that certain violations are an
administrative offence “when these violations have not affected the election
result”. This implies that if those violations would have affected the election
result, they would not be considered administrative offences but criminal
offences. The same applies to the text of Article 178 clauses (1) and (2). The
OSCE/ODIHR and Venice Commission recommend that this be clarified.
114.
The Electoral Code does not contain a consistent and uniform system for
the numbering of paragraphs, sub-paragraphs and clauses. For example, Article 1
lists clauses with alphabetical identifiers, while Article 2 lists clauses with
numerical identifiers. The OSCE/ODIHR and Venice Commission recommend that the
structure of articles and clauses in the Electoral Code be harmonized so that
all articles are presented in a consistent and uniform manner. Further, there are clearly omissions of
needed references in the text.
The OSCE/ODIHR and Venice Commission recommend that the Code be thoroughly
reviewed and amended to ensure technical drafting consistency and the
correction of omitted text.
115.
In some instances the Code contains conflicting provisions for
deadlines. For example, the deadline in clause (1) of Article 146 is not
consistent with the deadline in clause (1) of Article 148. The OSCE/ODIHR and
Venice Commission recommend that all deadlines in the Code be thoroughly
reviewed and corrected as necessary.
116.
The definitions in Article 2 should be carefully reviewed and considered
to ensure that they cannot be misapplied and are used consistently in the Code.
Particular attention should be given to the use of terms such as “domicile” and
“registered residence”. Article 2 and clause (1) of Article 58 suggest that a
voter can vote within the geographical area where a voter has registered his
“residence” even if it is not the same as the voter’s “domicile”. Article 76,
however, suggests that a voter can only vote in his “domicile”. Finally, it
must be noted that the Code is confusing in its use of terminology as it relates
to political parties. The terms
“electoral subject”, “political party”, and “coalition” are not used
consistently throughout the Code. The
OSCE/ODIHR and Venice Commission recommend that all instances in the Code where
important terms are used be carefully reviewed and corrected as necessary.
117. Articles 2 and 5 incorporate
definitions from the Civil Code of Albania. Ideally, the Electoral Code should be
able to answer all questions about the electoral process since voters,
candidates, election commission members and others may not be familiar with the
Civil Code. Further, an amendment to the Civil Code may not be consistent with
the principles and goals of a term as used in the Electoral Code. It would be
better for the Electoral Code to provide its own definitions without referring
to other laws. The OSCE/ODIHR and Venice Commission recommend that Articles 2
and 5 be amended accordingly.
118.
Article 7 contains rules for the setting of the election date and in
clause (2) it refers to “a CEC decision at a national level of election results
for local government organs”. It is, however, not clear whether this means a
nationwide declaration of results by the CEC for the local government
elections, or whether this refers to the “acceptance” by the CEC of an election
result declared by a Local Government Election Commission (LGEC) for the
relevant constituency. The latter would
lead to different expiry dates for mandates of organs of different
constituencies, which could lead to the problematic situation of local
government elections in different constituencies on different dates – since
clause (8) of Article 7 stipulates that elections are to be held within 60 to
30 days before the end of the mandate of the existing local organs. The
OSCE/ODIHR and Venice Commission recommend that Article 7 clause (2) be
clarified, taking into account the provision of Article 7 clause (8).
119.
Clause (3) of Article 7 mentions “general elections” while these are not
defined. Although it appears this refers to elections for the Assembly
(Parliament), it would be advisable to state this explicitly. The OSCE/ODIHR
and Venice Commission recommend that Article 7 clause (3) be accordingly
amended or that a definition of general elections be included in Article 2.
120.
In clause (4) of Article 7 reference is made to Article 87 of the
Constitution. However, it would also be appropriate to include a reference to
Article 65 of the Constitution as well. The OSCE/ODIHR and Venice Commission
recommend that Article 65 be referenced as well.
121.
The time span of 60 days in clauses (5) and (6) of Article 7 appears to
contradict Article 65 clause (2) of the Constitution, prescribing elections to
be held within 45 days after the dissolution of the Assembly. The OSCE/ODIHR
and Venice Commission recommend that clauses (5) and (6) of Article 7 be harmonized
with the Constitution.
122.
Clause (5) of Article 180 regulates the contents of the ballot boxes to
be sent to the CEC by the ZECs and LGECs following the declaration of
results. Clause (5) fails to include the
ballot stubs which, under Article 110(1)(b) and clause (6) of Article 180,
should be in the ballot boxes as well. The OSCE/ODIHR and Venice Commission
recommend that clause (5) of Article 180 be amended accordingly.
IV. CONCLUSION
123.
This assessment of the Electoral Code is provided with the intention of
assisting the authorities in their stated objective to further improve the
legal framework for democratic elections, and to bring the Electoral Code more
in line with OSCE commitments and other international standards for the conduct
of democratic elections.
124.
The OSCE/ODIHR and Venice Commission recognize that the current text of
the Electoral Code constitutes a significant improvement in comparison with the
previous code, in particular regarding complaints and appeals and the creation
of better conditions for equal campaigning. The new provisions on media
coverage, the articles implementing the general principle of the inviolability
of elections, and move to voter lists generated by the Civil Status Offices are
welcomed. However, a number of
outstanding concerns remain to be addressed, as indicated in the comments and
recommendations given in this assessment.
125.
The OSCE/ODIHR and Venice Commission continue to stand ready to assist
the authorities of the Republic of Albaniain their efforts to create a legal framework for democratic elections in
conformity with OSCE commitments and other international standards for
democratic elections.
