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Warsaw, Strasbourg, 25 October 2005
Opinion no. 336 / 2005
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CDL-AD(2005)029
Or. Engl.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
FINAL OPINION
ON THE AMENDMENTS TO THE ELECTION CODE
OF THE REPUBLIC OF AZERBAIJAN
by
the Venice Commission
and
OSCE/ODIHR
Adopted by the Council for
Democratic Elections
at its 14th meeting
(Venice, 20 October 2005)
and the Venice
Commission
at its 64th plenary
session
(Venice,
21-22 October 2005)
on the basis of comments by
Mr Georg Nolte (Venice
Commission, Substitute member, Germany)
Mr Peter Paczolay (Venice
Commission, Substitute member, Hungary)
Mr Rumen Maleev
(OSCE/ODIHR, Expert, Bulgaria)
I.
Introduction.
1. On 1 March 2005 representatives of the
Organization for Security and Cooperation in Europe’s Office for Democratic
Institutions and Human Rights (OSCE/ODIHR), the Venice Commission and the
authorities of the Republic of Azerbaijan met in Strasbourg in order to discuss
possible amendments to the Election Code. It was decided that the authorities
of Azerbaijan
would prepare a draft text and submit it for opinion to OSCE/ODIHR and the Venice Commission before the
end of March. The Venice
Commission received the draft on 25 April 2005
and transmitted it to OSCE/ODIHR and to its members Messrs G. Nolte and P.
Paczolay. The OSCE/ODIHR consulted Mr. R. Maleev for comments.
2. On 31 May 2005 representatives of the
Organization for Security and Cooperation in Europe’s Office for Democratic
Institutions and Human Rights (OSCE/ODIHR), the Venice Commission and the
authorities of the Republic of Azerbaijan met again in Strasbourg in order to
exchange their views on the proposed amendments to the Election Code and the
preliminary comments prepared by Messrs G. Nolte, P. Paczolay and R. Maleev.
3. The Venice Commission endorsed the
Interim opinion on the proposed amendments to the Election Code of the Republic of Azerbaijan
(CDL-AD(2005)018) at its 63rd Plenary Session (Venice, 10 – 11 June 2005). The
interim opinion was transmitted to the authorities of Azerbaijan
immediately after the session.
4. On 26 June 2005
the Milli Majlis of the Republic of Azerbaijan
adopted the amendments to the Election Code.
5. The adopted amendments to the Election Code
of the Republic
of Azerbaijan
must be considered in the context of previous assessments of this Election Code
by the Venice
Commission and the OSCE/ODIHR. The four most recent and most important
documents are the Joint Final Assessment of the Election Code of Azerbaijan
of 1 September 2003 (CDL-AD(2003)015), the Final Report of the OSCE/ODIHR
Election Observation Mission for the 2003 Presidential election (FR03), the
Joint Recommendations of 1 June 2004 (CDL-AD(2004)016rev and JR04) and the
Interim opinion on the proposed amendments to the Election Code of the Republic
of Azerbaijan (CDL-AD(2005)018). These documents are interrelated. They contain
important suggestions on how to improve the Election Code in order to provide
the legal framework for elections conducted in line with international
standards. This opinion reaffirms the above recommendations.
6. Unfortunately, the most important suggestions
have not been implemented by the authorities of Azerbaijan
in spite of the repeated recommendations from the Parliamentary Assembly and
the Committee of Ministers of the Council of Europe.
7. The adopted
amendments (referred to in the following text as “the law”) reflect the
recommendations of 2004 only to a limited degree, dealing mostly with technical
and minor issues. Although some of the amendments are in line with
international standards and a number of them even follow previous
recommendations by the Venice Commission and
OSCE/ODIHR, this cannot lead to the conclusion that the Election Code of Azerbaijan
is satisfactory after the amendments of 26 June 2005.
This will be made clear at the end of this opinion by a list of those previous recommendations from
2003 and 2004 which are still not sufficiently addressed or not reflected in
the new law.
8. For the purpose of this opinion the following
abbreviations will be used:
CEC – Central Election
Commission
ConEC – Constituency Election
Commission
PEC – Precinct Election
Commission
9. The main recommendations as they appear in
the documentCDL-AD(2004)016rev of the Venice Commission and document
JR04 of OSCE/ODIHR will be further referred to as “joint recommendations”.
10. The present opinion, which was prepared
on the basis of comments by Messrs G. Nolte, P. Paczolay and R. Maleev, was
adopted by the Council for Democratic Elections at its 14th meeting
(Venice, 20 October 2005) and by the Venice Commission at its 64th
plenary session (Venice, 21-22 October 2005).
II.
Comments on
individual amendments
11. The original text of each amendment will
appear in bold italic characters.
1. Amendments of the following
context should be made:
1.1.29.
results
of voting – results of calculation of votes in a precinct election commission,
during elections (referendum); results of calculation of votes in a
constituency election commission, during referendum and Presidential elections;
1.1.30.
results
of elections (referendum) – results of elections to the Milli Majlis of the Republic of Azerbaijan and municipalities, as specified
by the constituency election commission;
1.1.31.
election
(referendum ) returns – determining a nominee that is elected as a Deputy to
Milli Majlis, President of the Republic of Azerbaijan or a Councillor at
elections, or defining the issue that is (not) adopted through referendum;
1.1.32.
overall
returns of elections – generalization of
returns of the elections to the Milli Majlis or Municipal Elections that
reflect names of the candidates and number of votes for them.
12. These definitions appear to be added only for
the sake of terminology. If so, they would not be problematic.
2. The following should be added in
Article 2.4: “Elections of Deputies of the Milli Majlis of the Republic of
Azerbaijan and Elections of the President of the Republic of Azerbaijan cannot
be held on the same day. Elections of Deputies of the Milli Majlis of the Republic of Azerbaijan and Municipal Elections cannot
be held on the same day. Elections of the President of the Republic of Azerbaijan and Municipal Elections cannot
be held on the same day.”
13. It is legitimate to provide that different
elections cannot be held on the same day.
3. In Article 19.8. the words “and
on issues considered at that meeting” should be added after the words “on
conduct of a meeting of the election commission”; the words “and list of the
issues considered at that meeting, draft decisions and other documents related
thereto” be added after the words “information about the time of the election
commission’s meeting”; the words “and list of the issues considered at that
meeting, draft decisions and other documents related thereto” be added after
“information about time of the meeting”,
14. The additions are to be welcomed since they
are aimed at better preparation of commissions meetings by timely informing the
members about the agenda and delivering draft decisions to be discussed and
other documents related thereto personally in writing or by means of electronic
communication facilities.
4. The word “apparatus” should be replaced by “secretariat”, in
Article 19.17.
15. This seems to be a terminological
modification. It is therefore legitimate.
5. The following should be added in Article 22.1: “Restrictions
provided for with regard to kinship (except for immediate relatives) in this
Article, shall not apply to members of precinct election commissions
established in territories where the number of voters is less than 100 but more
than 50, as specified in Article 36.7 of this Code)”.
16. The amendment limits to immediate relatives
the general kinship restrictions on the persons eligible to serve in election
bodies, provided in Art. 22.1, for the case of special PECs for precincts with
less than 100 and more than 50 voters, formed by open vote at general meetings
of voters (Art. 36.7).
17. Such an exception should be applicable only
in cases when other options are not possible. The Central Electoral Commission
should establish a clear procedure for creating such precinct election
commissions.
6. In the Article 22.10.1, the
words “and issues to be discussed during such meetings, draft decisions
regarding these issues and other documents.” should be added after the word
“meeting”.
18. This amendment is line with amendment 3 - the
right of election commission members to be timely informed not only about the
next meeting, but also on the issues to be discussed, on the draft decisions,
etc.
7. In the Article 22.11, the words
“overall results” should be replaced by the words “returns (overall returns)”.
19. This change is in line with amendment 1.
8. In Article 27.1 the words “Chairperson, Deputy
Chairperson, Secretary and” should be added before the words “A member” and
“the member”.
20. According to the information provided by the
authorities of Azerbaijan this provision is necessary for solving some
pension-related issues. It appears that the translation of the amended
provisions is unclear.
9. In
Article 28.6, the words “and website” should be added after the word “outlet”.
21. The new addition establishes an obligation
for the CEC to support an internet site. This is a welcome codification of the
existing situation.
10. The following should be given as
Article 34.5: “Number of the permanent staff working for the secretariat of the
Constituency Election Commission, their titles and salaries shall be determined
by the Central Election Commission of the Republic of Azerbaijan.”
22. This addition appears to be legitimate.
11. In the Articles 40.12 and
42.2.7, the words “(overall returns)” should be added after the word “returns”
and “outcomes”.
12. Article
41.3 should be added in the following edit: “The observation can start from the
date the elections (referendum) are announced and shall finish the day when all
disputes regarding elections (referendum) are considered by the relevant court
and returns (overall returns) of elections (referendum) are officially
published.”
13. In
the Article 44.5, the words “general results” should be replaced with the words
“returns (overall returns)”; the word “(referendum)” should be added after the
word “the elections”.
23. The amendments in the three paragraphs above
represent an attempt to meet the OSCE/ODIHR’s and Venice Commission’s joint
recommendations that the Election Code guarantee the right for observers until
all the electoral tasks are completed. However, while explicitly establishing
that the observation can start from the date the elections are announced and
finish the day when all disputes regarding elections (referendum) are
considered by the courts and returns (general returns) are officially
published, the amendments fail to specifically address the right of access of
observers to electoral commissions after polling day. This appears necessary,
given the fact that the right of observation before and during Election Day is
specifically addressed. The Central Electoral Commission should therefore issue
a clarification specifying that the general rules, in particular Article 40.12,
apply equally to the time after Election Day, as confirmed by the authorities
of Azerbaijan. This includes unrestricted access to the election
commissions.
14. The following sentences should
be added to the Article 46.1: “The voters list shall be posted on relevant
website of the Central Election Commission in conformity with the rules
established by the Central Election Commission. In this case, the voters’
addresses must not be displayed.”
24. The publication of the voters list (without
addresses) on the internet is a welcome addition.
15. The word “should” in Article
48.1 to be changed to “should not”.
25. Amendment 15 to Art. 48.1 requires the public
display of copies of the Voters Lists without the voters’ addresses. This amendment will make it practically impossible for political
parties to check the accuracy of the Voters Lists.
16. The following sentence should be
added in Article 60.2.3: “(this provision can be applied to the candidates
nominated by political parties or blocks of political parties in the case if
the given information is inaccurate due to the candidate’s mistake)”.
17. The words “at least 3% of votes” should be changed
to “at least 3% of the valid votes” in Article 60.5.
26. In line with previous OSCE/ODIHR and Venice
Commission recommendations,[2] the amendment to Art.
60.5 provides for the return of the registration deposit to candidates who have
collected 3 per cent or more of the valid
votes.
18. The
word “constituency” should be changed to “relevant” in Article 73.2.
27. This amendment appears to be an editorial
change.
19. The
following sentence should be added prior to the word “The following” in the
Article 74.1: “Election Campaign is held in accordance with the Article 47 of
the Constitution of the Republic of Azerbaijan”.
20. The
following sentence should be added in Article 88.1: This prohibition should be
implemented in accordance with Article 47 of the Constitution of the Azerbaijan Republic.
28. Amendment No 19 now refers to Art. 47 of the
Constitution[3] in introducing the list of persons and groups
entitled to conduct an electoral campaign in Art. 74.1. This formulation
unfortunately does not fully address the joint recommendation to use the phrase
“notwithstanding the right of freedom of expression.”[4] There remains a
need to clarify that the right of freedom of expression is universal, thus
emphasizing that the list in Art. 74.1 is additional but not limiting. It is regrettable that the phrasing previously
recommended by OSCE/ODIHR and the Venice Commission has not been adopted.
29. Reference to Article 47 of the Constitution
is also made in the amendment No 20 to Art. 88.1, instead of including the
recommended mention “subject to the right of freedom of expression”[5] before the list of limitations on the content of
the election campaign material. It is all the more important as the limitations
refer at the end to “insulting citizen’s honour and dignity,” that is so
general. Unfortunately, the proposal to adopt the previously recommended
phrasing has not been implemented.
21. Articles 100.2.4 and 100.2.6
should be removed. Article 100.2.5 should be considered 100.2.4. Article
100.2.7 should be considered 100.2.5; Articles 100.2.8-100.2.19 should be
considered 100.2.6-100.2.17 respectively.
30. The removal of Art. 100.2.4, 100.2.6 is
adopted as recommended inCDL-AD(2004)016rev (JR04), para 28 in order to shorten the list of items to be included in
the results protocols.
31. The proposal to amend Art. 106.2 so as to
provide for the obligation of PEC to announce and record in the result protocol
the number of envelopes found in each box immediately after the count of the
envelopes in the ballot box has been completed has not been considered by the
authorities. The CEC instructions for the count should provide next for mixing
the envelopes from all boxes before starting to open the envelopes one by one
in order to determine the validity of the vote.
22. To add the following sentence in Article 104.6
after the words “upon receiving the ballot paper” and to Article 105.2 after
the words “verify this with his/her signature”: “The person who issues ballot
paper to voter shall put a stamp indicating the voting date on the voter’s
card”.
32. Amendment 22 intends to introduce a safeguard
against possible misuse on election day of the voter cards, which are issued to
voters to prove their inclusion in the Voter List (Art. 46.2). The amendment
provides for the PEC member issuing the envelope and ballot paper(s) to the
voter to stamp his/her voter’s card with a special seal, which indicates the
voting date. Such a measure could be meaningful only if the printing and
distribution of the voter’s cards is subject to strong control and
accountability. As it now stands, the procedure is not an effective alternative
to the reintroduction of the provision on inking voters’ fingers as has been
previously suggested by OSCE/ODIHR and the Venice Commission (Joint Final
Assessment,CDL-AD(2003)015, para. 42).
23. To add the words “and observers” after the words “of two members”
in Article 106.7.
33. The amendment positively reaffirms the right
of the observers provided in Art. 42.2.11 to observe the transfer of the PEC
protocols and other election material to the relevant ConEC by accompanying the
Chairperson and the 2 PEC members in charge with the delivery.
24. The following sentence to be added to the end of Article 108.2:
“The Central Election Commission of the Republic of Azerbaijan shall draw protocol on general
outcomes of elections to the Milli Majlis of the Republic of Azerbaijan and to municipalities”.
34. While the CEC does not compile protocols on
the results of Municipal elections and elections to Milli Majlis, it is obliged
by amendment 24 to Art. 108.2 to draw up protocols on the “general outcomes” of
these elections. Such a measure is a positive step towards providing in
consolidated form concise information on the “overall returns” of elections
conducted at constituency level. According to 171.2, the deadline for issuing
protocols is 20 days. The length of this deadline ensures that all appeals can
be settled, but it does not impair the obligation to issue the protocols as
soon as possible In addition,
appropriate editing of the article is necessary in line with the newly
introduced terminology in Art. 1.1.32.
25. To replace figure “5” with figure “2” in Article 109.1.
26. To replace words “2 days” with words “Immediately, but not
later than 24 hours to the Central Election Commission”; to remove the words
“at latest” and to add the words “submitted to mass media and” after the words “should be” in Article 109.3.
35. The OSCE/ODIHR and Venice Commission
recommendation[6] to shorten to 24 hours the deadline for publication
of preliminary results is partially implemented by amending Art. 109.1 with a
provision obliging CEC to publish the unified voting results of the ConECs
within 2 (instead of 5) days starting from the voting day. Analogously, the
deadline for publication of the results per PS by ConECs in Art. 109.3 is
shortened to 24 hours (instead of 2 days) after the polling day. The obligation
for immediate publication (not necessarily waiting for the expiry of the 24
hour deadline) of the preliminary results of elections (voting) per PS in the
constituencies is commendable.
27. Articles 112.2 and 112.3. to be given in the following edit:
112.2. The persons indicated in Article 112.1 of
this Code may submit their complaints to the superior election commissions.
112.3. If complaints of the persons indicated in
Article 112.1 are initially not considered by a superior election commission,
consequently they can file complaints on the decision or the action (inaction)
of the constituency election commission to the Central Election Commission, and
on the decision or the action (inaction) of the Central Election Commission to
the Court of Appeal.
36.
The wording in Art. 112.3 “If complaints indicated in Art. 112.1 of this
Code are initially not considered by a superior election commission” is
unclear, as it does not specify where a complaint should be lodged first. The
amendment establishes a single line for complaints and appeals of voters
dissatisfied by an act of omission of a PEC: first to the ConEC, then to the
CEC, and then to the Court of Appeal. This represents a very time consuming
scheme of election dispute system, which is likely to deprive voters,
candidates and other interested parties of an effective remedy. The OSCE/ODIHR
and the Venice Commission recommendation to provide for “direct access to a
court to ensure effective and prompt protection of electoral rights is not
implemented.”[7] The possibility of criminal complaints is not a
proper alternative remedy, since it concerns only a minimum of violations of
electoral law and since criminal procedure may not lead to the invalidation of
wrong decisions.
37. The joint recommendations to amend Art. 112.1
by clarifying that the right to file a complaint is universal in relation to
all decisions and by extending the three-day limit for lodging complaints are
not addressed.
28.
To
add the following sentences in Article 112.4:
“In any case, the Central
Election Commission must make a grounded decision upon consideration of any complaint.
If existence of an element of crime is assumed during the investigation of the
complaint, the prosecuting body should be informed about it. The relevant
prosecuting body must consider the complaint within 3 days”.
38. The amendment represents considerable
improvement, implementing to a large extent the relevant recommendation.[8] The CEC now informs a public prosecutor in cases
of alleged criminal activity, which does not entail the full “transfer” of the
complaint to the public prosecutor. Rather, the election commission should
continue to be competent to inquire into the effect of the subject of the
complaint on the election results while leaving the criminal prosecution to the
public prosecutor.
39. Another element of the proposal, the
establishment of a timeline for action to be taken by prosecutorial bodies,
would seem to strengthen the process and is therefore welcome.
29. To add the words “each” before the word “complaint” in Article
112.10.
30. To replace the words “minimum salary” with the words
“conventional financial unit” in Articles 128, 130, 156, 159, 191, 192, 225,
228.
40. The changes in paragraph 30 appear to be
legitimate.
31. In Article 128.3, to replace the figures “5”, “50”, “100” with
the figures “25”, “250”, “500” respectively.
32. In Article 130, to replace the
figures “2”, “1”, “50” with the figures “10”, “5”, “250” respectively.
41. Amendment 31 and 32 provide for an update of
the maximum limits for the referendum funds of different categories registered
referendum campaign groups.
33. The following words to be added
in Articles 139.2.1, 170.2.2., 204.1.1 and 240.2.1: “or when they are
cancelled, under the condition that the number of registered voters in the
election precincts exceeds ¼ of all voters registered in the constituency.”
42.
The previous provisions of the Electoral Code contained in these
articles ordered the invalidation of the result of an election or Referendum by
a ConEC or CEC in practice only if due to irregularities the election results
in more than 40 per cent of the relevant precincts were declared invalid. These
provisions have been the subject of previous recommendations. It appears that
amendment 33 introduces an alternative condition for the invalidation of the
result of an election at constituency or national level: if the number of
registered voters in the precincts where the results were invalidated exceeds ¼
of the total number of voters registered in the relevant constituency or
nationwide, respectively.
43.
If this interpretation
is correct, the amendment provides for an essential redress of the previous
situation. The results of an election are now considered valid if the results
are invalidated due to irregularities in no more than 40 per cent of the
precincts and the number of voters in those precincts does not exceed ¼ of the
voters registered in the relevant constituency. However, the level of accepted
irregularities, affecting the voting rights of 25 per cent of the eligible
voters is still very high and does not meet international standards. It should
be made clear that the appeal body must annul
elections where irregularities may have affected the outcome (Article 114 of
the Election Code only says that the Court may
annul decisions).
34. In
Article 156 to replace figures “15”, “2”, “5”, “100” with the figures “75”,
“10”, “25”, “500” respectively.
44. The amendment provides for an adjustment of
the calculation of the maximum limits for candidates’ election fund, as well as
for the special funds, funds of candidates and political parties, funds
allocated by ConEC and voluntary donations to candidates’ election funds in
elections to the Milli Majlis..
35. In Article 159.1.1, to replace
the figures “2”, “500” with the figures “10”, “2500” respectively.
36. In
Article 159.1.2, to replace the figures “1”, “250” with the figures “5”, “1250”
respectively.
37. In Article 159.1.3, to replace
the figures “50” with the figures “250”.
38. In Article 159.2.1, to replace
the figures “2” with the figures “10”.
39. In Article 159.2.2, to replace
the figures “1” with the figures “5”.
40. In Article 159.2.3, to replace
the figures “50” with the figures “250”.
45. These amendments adjust the ceiling for
declaring contributions to election funds of candidates and political parties
and on disposition of these funds.
41. In Articles 161 and 230, to replace the words “at least 3
percent of the votes of total number of voters” with the words “at least 3
percent of the votes considered valid”.
46. The amendment implements the OSCE/ODIHR and
Venice Commission recommendation to set the threshold necessary for releasing
candidates in elections to Milli Majlis and to Municipal Councils from the
obligation of paying the cost of free airtime and space at 3 per cent of the
number of valid votes instead of 3 per cent of the number of voters.[9]
42. The words “200 thousands” with the words “1 million” in Article
191.1.
47. The amendment provides for an adjustment of
the maximum limit for the election fund of a presidential candidate. This was
not the subject of previous recommendations.
43. In article 192 to replace the figures “2”, “500”, “1”, “250”,
“50” with the figures “10”, “2500”, “5”, “1250”, “250”respectively.
48. The amendment sets the requirements for
securing the transparency in the usage of the election funds of Presidential
candidates in line with the increase of the maximum limit for this fund in
Article 191.
44. To replace the words “at least 5 percent of the votes of total
number of voters” with the words “at least 3 percent of the votes considered
valid” in Article 194.
49. The amendment provides for the previously
recommended reduction of the threshold necessary for releasing presidential
candidates from the obligatory payment of the costs of free airtime and space
from 5 per cent of the number of voters to 3 per cent of the valid votes. This
is in line with the analogous threshold provided for the candidates in
elections to Milli Majlis and Municipal Councils (see paragraph 45 above).
45. In Article 203.1 to replace the figure
“14” with the figure “10” in Article 203.1, to add the words “pursuant to Article 102 of the
Constitution” after the word “approval”.
50. The amendment sets a 10 day deadline (instead
of the previous14 day deadline) for the CEC to deliver the results of the
presidential election to the Constitutional Court. This removes the conflict between the former Art.
203.1 of the Election Code and Art.102 of the Constitution, thus following the
joint recommendations of OSCE/ODIHR and the Venice Commission
(CDL-AD(2004)016rev, JR04, para 31).
46. In Article 225.1.1, to replace the figures “2”, “1500”, “1”,
“500”, “250”, “150” with the figures “10”, “7500”, “5”, “2500”, “1250”, and “750”
respectively.
47. In Article 225.1.2, to replace the figures “1500”, “1”, “750”, “500”, “250”, “100” with
the figures “7500”, “5”, “3750”, “2500”,
“1250” and “500” respectively.
48. To replace the figure “100” with the figure “500” in Article 225.1.4.
49. In Article 225.1.5, to replace the figures “2”, “1500”, “750”,
“500”, “250”, “150” with the figures “10”, “7500”, “3750”, “2500”, “1250” and
“750” respectively.
50. In Article 225.2, to replace the figures “10”, “7500”, “5000”,
“2500”, “1500”, “1000” with the figures “50”, “37500”, “25000”, “12500”, “7500”, “1250” and “5000” respectively.
51. In Article 225.5.1, to replace the figure “50” with the figure
“250”.
52. In Article 225.5.3, to replace the figures “150” and “5” with the
figures “750” and “25” respectively.
53. In Article 225.6, to replace the figure “100” with the figure
“500”.
54. In Article 228.1.2, to replace the figure “500” with the figures
“2500”.
55. In Article 228.1.3, to replace the figure “50” with the figures “250”.
56. In Article 228.2.1, to replace the figure “2” with the figures
“10”.
57. In Article 228.2.2, to replace the figure “1” with the figures
“5”.
58. In Article 228.2.3, to replace the figure “50” with the figures
“250”.
51.
Amendments 46 – 53 represent an adjustment of the maximum limits for the
election funds for local elections of the political parties, blocks of
political parties and candidates for municipal councillors. Amendments 54 - 58 set the requirements for transparency
in the usage of the election funds in municipal elections in line with the
increase of maximum limit for this fund.
III.
The Election Process as a Whole
52. The OSCE/ODIHR and the Venice Commission
regret that a considerable number of the previous recommendations from 2003,
2004 and 2005 were not reflected in the amendments or were reflected only to a
very limited extent.
53.
The following crucial recommendations contained in the former Joint Final
Assessment (CDL-AD(2003)015), in the Joint Recommendations (CDL-AD(2004)016rev
(JR04)) and in the Interim opinion (CDL-AD(2005)018) on important issues are
not addressed at all or are insufficiently addressed:[10]:
1. Composition of Election Commissions (para
9-12 of the Joint Recommendations);
2. Signing petitions for presidential elections
(para13);
3. Refusal of Candidates for presidential
elections (para14-15);
4. Venue for election rallies (para16);
5. Right to campaign (para 17-18);
6. Financing provisions (para 19);
7. Observers (para 24-25);
8. De-registration procedures (para 26);
9. Preliminary Declarations (para 30);
10. Complaints and appeals (para 33).
11. Declaration of invalidity (para 36);
12. Referendum turnout (para 38);
13. Inking of fingers (CDL-AD(2003)015, para 42).
54.
In addition, amendment 15 (Article 48.1) eliminates a previous provision
regarding the transparency of the compilation of the Voter Lists.
55.
There are some additional issues of concern that are not subject to
regulating provisions of the Code (at least in a direct way) which could
compromise the organisation of democratic elections such as:
-
Restrictions
on certain NGOs to act as observers (para 22 of the Joint Recommendations), and
-
Intimidation
of Election Staff (para 37 of the Joint recommendations).
56.
The electoral legislation does not foresee for the parliamentary
elections the organisation of the vote for the citizens of Azerbaijan residing abroad. While there are a significant
number of citizens who are currently unable to vote as a result, it is
recognised that the single mandate election system used for parliamentary
elections in the Republic of Azerbaijan creates serious logistical challenges for the
organisation of voting for citizens residing abroad.
57.
Finally, the Electoral Code remains far too complex with unnecessary
repetitions, especially in the provisions on the registration of candidates, campaign
financing, lists of persons entitled to conduct pre-election campaign and
limitations on the content of election campaign material.
IV.
Conclusion
58. This opinion on the Law on Amendments to the
Election Code shows that most of the important recommendations of OSCE/ODIHR
and the Venice Commission were only partially implemented or not considered at
all.
59. Along with mostly technical changes, only a
limited number of substantial amendments have been adopted in response to the
2003 and 2004 joint recommendations and 2005 Interim opinion of OSCE/ODIHR and
the Venice Commission. These include:
-
improvement
of the administrative practices related to the creation of normal conditions
for the work of the election commissions (amendments 3 and 6);
-
an
expansion of the rights of observers to cover the post-election period,
although the amendment does not fully address the recommendation (amendment
12);
-
increase
of the transparency of the process of up-dating of the Voters list by posting
it on a specific CEC web site (amendment 14). However, this step is undermined
by the elimination of the requirement to publicly display the Voters list with
addresses of voters (amendment 15);
-
return
of the registration deposit to those candidates who receive at least 3 per cent
of the valid votes (amendment 17);
-
the
removal of Articles 100.2.4 and 100.2.6 in order to shorten the list of items
to be included in the results protocols (amendment 21);
-
increase
of the public confidence in the election process by timely announcement of
preliminary results (amendments 25 and 26);
-
expeditious
investigation of election-related issues by the prosecution (amendment 28);
-
reduction
of the deposit paid by nominees who do not collect the 450 signatures necessary
to register as a candidate;
-
reduction
of the threshold for releasing candidates in presidential elections from the
obligation to pay the cost of free airtime and space to 3 percent of valid
votes, and reformulation of the threshold calculation to 3 per cent of valid
votes for all levels of election (amendments 41 and 44);
-
reduction
of the deadline for the CEC to deliver the results of the presidential election
to the Constitutional
Court to
ten days, thereby eliminating a conflict between the Constitution and the
Election Code (amendment 45).
60.
The OSCE/ODIHR and the Venice Commission are of the opinion that, since
the remaining recommendations of 2003, 2004 and 2005 have not been duly taken into consideration, the
examined law only partially meet OSCE
commitments and Council of Europe standards for democratic elections and is insufficient
to develop the necessary public
confidence in the electoral legislation and practice in Azerbaijan.
