DRAFT joint recommendations
on the electoral law and
the electoral administration
in AZERBAIJAN
by
the Venice Commission
and
the
OSCE/ODIHR
on the
basis of comments by
mr Richard BARRETT (Venice Commission, expert, Ireland)
I.
Introduction
1.
Mandate
1. 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.
2. The Venice Commission asked for a review of Election legislation and
practices, based in particular on the observation reports of the presidential
election in Azerbaijan of 15 October 2003. This review, issued by Mr Richard Barrett (Venice Commission, expert, Ireland) and OSCE/ODIHR, resulted in a set of recommendations for
amendments to the Election Law and electoral practice. Many of the proposals
were also taken from the Opinion on the Election Code of the Republic of
Azerbaijan issued by the OSCE/ODIHR/Venice Commission on 22 October 2003 (CDL-AD(2003)015)
on the basis of comments by Mr Georg Nolte (Venice Commission, substitute
member, Germany), Mr Eugenio Polizzi
(Venice Commission,
expert, Italy), Mr Joe Middleton (OSCE/ODIHR, legal expert) and Mr Rumen Maleev
(OSCE/ODIHR, election expert).
3.
Subsequently, Mr Barrett’s draft was submitted for comment to the
OSCE/ODIHR and to the rapporteurs from the Parliamentary Assembly of the
Council of Europe and the Congress of Local and Regional Authorities of the
Council of Europe.
4. These
recommendations will be presented at the 8th meeting of the Council
for Democratic Elections (Venice, 11 March 2004).
2.
Reference documents
5. These
recommendations are based upon:
- the Election Code of Azerbaijan (translation)
(CDL(2002)147);
- Constitution
of the Republic of Azerbaijan (CDL(2003)048);
- the Election
observation report from the Parliamentary Assembly on the presidential
elections in Azerbaijan on 15 October 2003 (Doc. 1000327, November 2003), as well as the election observation report by OSCE/ODIHR
(Doc. ODIHR.GAL/78/0313 of November 2003);
- the joint OSCE/ODIHR/VeniceCommission assessment of the election Code of the Republic
of Azerbaijan(CDL-AD(2003)015);
- comments by the OSCE/ODIHR, 2 March 2004;
- the Code of good practice in
electoral matters adopted by the Venice Commission, including the
Guidelines on Elections (CDL-AD(2002)023rev).
II. Proposed changes to the Election Code
6.
The Election Code is still far too complex and contains repetitions.
This creates difficulties for candidates, political parties, observers,
election officials and for anyone who needs to be familiar with it or wishing
to make a complaint. This reduces the transparency of the legislation and goes
contrary to the right of citizens to have a clear knowledge of the law. The OSCE/ODIHR/VeniceCommission joint assessment (DocumentCDL-AD(2003)015) identified in particular
the provisions on the registration of candidates, and campaign financing in
that regard, but further examples are the lists of those entitled to conduct an
election campaign, and limitations on the content of election campaign
material.
7.
The following recommendations deal with a number of provisions which
should be reconsidered:
1. Composition of Election Commissions
8. The composition of the Central Election
Commission (CEC), Constituency Election Commissions (ConECs) and Precinct
Election Commissions (PECs), set out in the Election Code and the transitional
provisions, should be revised. The commissions should enjoy the confidence of
all major election stakeholders. To achieve this goal they should not be
dominated by pro-government forces. The existing provisions are not sufficient
to ensure that. The recent presidential election demonstrated that the election
commissions do not operate independently enough.
9. The openness of the appointment and the
transparency of the work of the commissions are essential to establish the
legitimacy of the electoral process.
10. The “draft model” proposed by the Venice Commission – OSCE/ODIHR
should be reconsidered.
11. Attention should be paid to other important
aspects of election commissions’ composition:
i)
Leadership of
electoral commissions. The Election Code
gives large powers to the Chairperson of an election commission. Hence, it
would be preferable to appoint chairpersons representing different political
parties. This measure will increase the confidence in the work of the
commissions. The ruling party should not monopolise the chair positions across
the election administration. This contributes to the lack of independence of
the election commissions from the authorities.
ii)
Nomination and
appointment of commissioners. The Election
Code should provide for a clear and transparent procedure of nomination and
appointment of all commissioners.
iii)
Term of office of
commissioners. The 5 years term of office
for regular members of ConECs acting only during election periods and for all
PEC members, acting during election periods and annual drafting of the voters’
lists, looks excessively long and should be revised. This will decrease the
cost of elections.
iv)
The residence
restrictions for PEC membership (Art. 36.2) appear artificial and irrelevant
for constituencies organised for IDPs and refugees from the occupied
territories and should be revised.
v)
Further, decisions of
the commissions should require a quorum of two-thirds and a majority of
two- thirds. This would require a high level of consensus to make the
commissions operative.
- Signing
petitions
12. The Election Code should allow voters to sign
petitions on behalf of more than one candidate in presidential elections, as is
already the case in elections to the Milli Mejlis.
- Refusal of
candidates
13. The Election Code should limit and clarify
the reasons for refusing candidates for presidential election. Reasoned
decisions have to be provided so that aggrieved persons can bring complaints to
the courts. This concern was elaborated on in the OSCE/ODIHR Final Report on
the 15 October 2003 Presidential
Election.
14. The number of 45,000 supporters’ signatures
required for the registration of presidential candidates should be decreased.
The 15 October 2003 Presidential
Eelection confirmed that the number of signatures is not adequate. For instance
in the last election, two duly registered candidates gained a number of votes
that was less than the number of collected signatures. In addition, the
checking of signatures is time consuming and open to abuse.
- Venue for
election rallies
15. Art. 86 of the Election Code should be
amended in order to explicitly regulate rallies and open air gatherings. The
election commissions should be given specific power to recommend to local
authorities to provide venues for election rallies under the same conditions
for all contenders. The controls in the Law on Freedom of Assembly have to give
way to the need for openness in the electoral campaign. This was pointed out in
the OSCE/ODIHR Final Report published on 12 November 2003.
- Right to
campaign
16. The phrase “notwithstanding the right of
freedom of expression” should introduce the list of persons and groups entitled
to conduct an electoral campaign set out at the beginning of Art. 74.1. This is
to clarify that the right of freedom of expression is universal and the list
following is additional but not limiting. This was fully explained in the
OSCE/ODIHR - Venice Commission’s joint assessment of the Election Code of the Republic of Azerbaijan (CDL-AD(2003)015, par. 15). It is
recommended to add initiative groups of voters nominating candidates, as well
as candidates’ agents and authorised representatives to the list of subjects
entitled to conduct campaign (Art. 74.1).
17. By the same token, Art. 88.1 should include
the mention “subject to the right of freedom of expression” before the list of
limitations on the content of election campaign material. It is all the more
important as the limitations refer to “insulting citizens’ honour or dignity”
that is so general.
- Financing
provisions
18. The election financing
provisions in Art. 94 and 95 are too complex and impose a rather
cumbersome burden on candidates and parties. This was highlighted in the
OSCE/ODIHR - Venice Commission Joint final assessment of the Election Code
(Doc.CDL-AD(2003)015, par. 18).
- Free Air
Time
19. Article 194 of the Code establishes a 5%
threshold necessary for releasing presidential candidates from the obligation
to pay the cost of free airtime and space. The threshold should be reduced to
3% in line with the 3% threshold fixed for parliamentary and municipal
elections (Art. 161 and Art. 230). It is recommended to request 3% of valid
votes, rather than of the number of voters in the relevant constituency.
- Return of
deposit
20. The Election Code should provide for
unconditional return of the voluntary registration deposit to candidates who
collected 3% or more of valid votes.
- Observers
21. The fact that some NGOs receive foreign State
funding should not prohibit them from appointing observers as was pointed out
in the Parliamentary Assembly of the Council of Europe (PACE) and OSCE/ODIHR
reports. This will require an amendment to the Law on Public Unions and
Foundations.
22.
The Code should specify that observers have a role and a right of access
to electoral commissions after polling day until all the electoral tasks are
completed. This increases the transparency of the commissions’ activities,
especially the CEC, in the crucial days before the announcement of the final
results.
23. The Election Code should also be amended so
as to provide for a simple procedure (at PEC level) for registration of individual observers.
24. The Election Code does not require
accreditation by election officials for party or candidates’ observers
monitoring the work of specific PEC on election day
(Art. 40.16). However, during the last presidential election, the CEC issued
instructions establishing a cumbersome and complex registration procedure for
such observers as well as for individual observers.
- Deregistration
procedures
25.
The “de-registration” procedures are open to abuse leading to the
possibility of persons voting at more than one polling station, especially in
the absence of a provision for voter marking (inking) on polling day. This was
pointed out in the PACE report of November 2003. This procedure should be
reconsidered. If the de-registration is kept, the procedure should start after
the formal closure of the voter lists (35 days before election
day) when amendments and inclusions are made only by court decision.
Additionally, PECs should beresponsible for the issuance of de-registration cards and not the ConECs.
Provision for voter marking (inking) was in earlier drafts of the Election
Code. This efficient anti-fraud measure should be looked at again since it
diminishes the risk of multiple voting. This was pointed out in the OSCE/ODIHR
- Venice Commission assessment (CDL-AD(2003)015, par. 42).
- Invalid
ballot papers
26. It should be made clear, in Art. 200.3, that
a ballot paper is invalid if no square is marked (cf. Art. 106.3.4 and 167.3).
- Protocols
27.
It is recommended to shorten the list of items to be included in the
results protocols (Art. 100), which would simplify the completion of protocols
and limit errors. Art. 100.2.4 and Art. 100.2.6 are
redundant – the information requested there duplicates the information
contained in Art. 100.2.5, Art. 100.2.7 and Art. 100.2.8.
- Preliminary
declarations
28. The Code should provide for an announcement
of preliminary results within 24 hours as was recommended in the PACE report of
November 2003. The recent experience proved that this is technically possible.
Such a practice can ease the tension surrounding any elections and increase
confidence in the results. By the same token, the Code should provide for an
explicit obligation – rather than a possibility – for the CEC to post the
precinct results on its website immediately
after it receives them from the ConECs.
29. While the tabulation procedure at ConEC and
CEC level was considerably improved compared to the previous legislation
additional clarifications are required on the receipt of PEC protocols and
their computerised tabulation. This could increase transparency of the process
and limit serious violations and malpractices reported in the past during this
crucial election phase.
- Reference
to Constitutional Court
30. The 14-day period in the Election Code during
which the CEC can send presidential election results to the Constitutional Court should be reduced, so that the court has time to carry out
its function properly, before the end of the 14-day period allowed under Art. 102 of the Constitution. This unsatisfactory clash between
the Code and the constitutional provision was pointed out in the OSCE/ODIHR
Final Report on 2003 Presidential Election.
31. As imposed by the 2002 constitutional changes
the long time postponed amendments to the Constitutional Court Law aimed to put
into effect the citizens’ right to appeal to the Constitutional Court should be enacted urgently by Milli Majlis.
- Complaints
and appeals
32. The complaint procedure should allow direct
and speedy complaint to a court, whether the issue could lead to criminal
liability or not. This is to provide an effective remedy to protect the
electoral right. It is unacceptable that the subtle difference between
complaints which could lead to criminal liability and those which could not,
should determine venue especially when the time for bringing complaints is so
short. Further Art. 112.1 should be rewritten to
clarify whether the right to file a complaint is intended to be universal in
relation to all decisions, and the three-day limit should be extended. As
suggested by the Joint final assessment of the Election Code of the Republic
of Azerbaijan (CDL-AD(2003)015, par. 54), the
first appeal could be made to an election commission.
33. The OSCE/ODIHR final Report on the Presidential
Election pointed out the necessity of amending the Code by requiring more
expeditious investigations of election-related issues by the Prosecutor’s
Office.
- Declaration
of invalidity
34. The cancellation of results, declared on a
large scale after the recent presidential election, should only be made in a
reasoned manner following a transparent process, as they effectively cancel the
votes of voters. Only an open and reasoned process leading to invalidity can
protect the electoral right, determine responsibility for violations, and
provide lessons for future elections. As pointed out in the OSCE/ODIHR-VeniceCommission joint assessment (CDL-AD(2003)015, par.48), it is difficult to find
the results of an election acceptable if due to irregularities the election
results in 40% of the relevant precincts were declared invalid.
35. It was also pointed out in that assessment that sanctions should be proportional to the mistake,
shortcoming or violation committed. For example it is highly disputable whether
all votes cast at a polling station should be declared invalid merely because a
voter has omitted to sign the voters’ list (Art. 106.2). This consequence is
too drastic and does not respect the principle of proportionality.
- Intimidation
of election staff
36. Stronger sanctions are needed against
threatening and intimidating electoral staff. In particular consideration
should be given to putting in place a presumption that when officials involved
in the electoral process are dismissed from public employment during a specific
period before or after Election Day, there should be a presumption that the
dismissal arises from their conduct at the election, so that the authorities
would have to prove the contrary. The scale of this problem after the recent
presidential election was highlighted in the OSCE/ODIHR final Report of
November 2003.
- Referendum
turnout
37.
The 25% turnout requirement for a referendum to be valid (Art. 139.1) is
too low and should be increased.
III. Changes in practice
38.
As soon as possible the authorities should undertake steps towards the
transformation of the State TV into an independent public service broadcaster,
with balanced reporting, including when covering executives’ activities during
election periods. (OSCE/ODIHR Final Report on Presidential Election)
39.
The CEC should take a broader view of its mandate, and in particular
should ensure the implementation of Article 17.4 of the Election Code, which
states that election commissions’ decisions and acts within their authority are
obligatory for state bodies and municipalities. This provision puts the CEC in
a position to insist on adequate co-operation from other State bodies to ensure
that all elements of the Election Code are implemented adequately.
40.
CEC Instructions and Regulations should be clear, simple, genuinely
explanatory and consistent with the Code. They should not be a mere repetition
of the Election code’s provision.
41.
Detailed CEC instructions are needed to regulate the use of the State
Automated Information System for maintaining the voter register, preparation of
the voter lists for forthcoming elections and for tabulation and publication of
the election results on the CEC Internet site.
42.
During election periods (before the start of the campaign) the CEC
should create an independent media council with professional and non-partisan
composition, with a clear mandate to oversee the campaign through mass media. (OSCE/ODIHR Final Report on Presidential Election).
43. There must be better training for PEC and DEC
members to ensure the best practice across the whole country.
44. All decisions of electoral commissions should
be clear and reasoned so that aggrieved persons can judge whether to make a
formal complaint.
45. There must be more co-operation with
observers and in particular there should be no instruction from officials that
observers have to stand in one place only in polling stations, as suggested in
the PACE report of November 2003.
46. All electoral protocols should be published
and publicly posted within the specified time limits.
47. The election commissions have to remain
available to observers, the media and possible complainants in the period
following the election until the whole process is completed.
48. Safeguards should be instituted to ensure
that Executive Committees (local authorities) do not interfere in the electoral
process or direct the work of election commissions.
