Since its creation, the Venice Commission has been active in
the electoral field, in particular, through the adoption of opinions on draft
electoral legislation. The Commission has also taken part in the drafting of
legislative texts in the electoral field: the most typical example is that of
Albania, where the Commission took part in the drafting of electoral legislation
in 1997, 2000 and in 2003, in the framework of the bipartisan commission. In
1997 the Commission was even asked to write a first draft election law for
Bosnia and Herzegovina.
The Commission co-operates closely with the Office for
Democratic Institutions and Human Rights (OSCE/ODIHR). Most opinions related to
electoral legislation are drafted jointly by these two organisations.
Among the states that have co-operated regularly with the Commission in the
electoral field one can cite such countries as Albania, Armenia, Azerbaijan, Georgia and Ukraine. The Commission
has been active, on a more occasional basis, in a number of other States, for
example in the Swiss cantons, in Croatia, in Moldova, in Romania and in “the Former Yugoslav
Republic of Macedonia”.
The Venice Commission works also on questions related to referendums as it
was the case in Montenegro.
Since 2002 the role of the Commission in electoral matters has been
reaffirmed through the creation of the Council for Democratic Elections.
Moreover, its activities include seminaries, training workshops and missions of
assistance. In order to give electoral laws certain stability and to further the
construction of a European electoral heritage, the Venice Commission and the
Council of Democratic Elections developed the principles of the European
electoral heritage, in particular, by drafting the “Code of good practice in
electoral matters", which is completed by other reference documents.
The Council for Democratic Elections (CDE) is made up of
representatives of the Venice Commission, the Parliamentary Assembly and the
Congress of Local and Regional Authorities of the Council of Europe. It has also
encouraged the European Parliament, the European Commission, the Office for
Democratic Institutions and Human Rights and also the Parliamentary Assembly of
the Organisation for Security and Co-operation in Europe (OSCE), as well as the
Association of Central and Eastern European Election Officials (ACEEEO), to join
in its work in an observer capacity.
The aim of the Council for Democratic Elections is to
ensure co-operation in the electoral field between the Venice Commission as a
legal body and the Parliamentary Assembly and the Congress of Local and Regional
Authorities of the Council of Europe as political bodies in charge of election
observation, in order to promote the European common values in this field – the
principles of the European electoral heritage
The Council for Democratic elections is charge of the
analysis of draft opinions and studies of the Venice Commission in the electoral
field before their submission to the plenary session. In addition it oversees
the compilation of a database featuring Council of Europe member States'
electoral legislation.
The different kinds of work carried out by the Venice
Commission in the area of elections are set out below:
In the framework of its work on the participation of persons belonging to
national minorities in public life, the Venice Commission has adopted a document
on “Electoral law and national
minorities”. This text underlines that only few states provide for specific
rules on the representation of minorities in the elected bodies. The analysis of
the question on the participation of persons belonging to national minorities
in the elected bodies and more specifically in the national Parliaments,
implies the examination of more general questions of electoral law and, in
particular, of the influence of the electoral systems on the representation of
political groups.
The participation of members of national minorities in public life through
elected office results not so much from the application of rules peculiar to the
minorities, as from the implementation of general rules of electoral law,
adjusted, if need be, to increase the chances of success of the candidates from
such minorities.
The Venice Commission also adopted a few other studies on
general themes, such as
electoral standards,
electoral
systems,
electronic
and remote voting, as well as the creation of a database including, inter
alia, the electoral legislation of the member states of the Council of Europe.
b. The Venice Commission regularly adopts opinions in the
electoral field. In 2006 it adopted opinions on the electoral law of Armenia,
Belarus, Croatia, Georgia and Serbia. The vast majority of opinions are
prepared jointly with the OSCE/ODIHR.
The Commission also adopts opinions on referendums, as was
recently the case regarding Montenegro (opinion on the referendum in
Montenegro).
The first task of the Council for Democratic elections was to adopt a
Code of Good Practice in Electoral
Matters. This document defines not only the fundamental norms of the European
electoral heritage: universal, equal, free, secret and direct suffrage, as well
as frequency of elections, but also framework conditions necessary for the
organisation of proper elections, such as respect for human rights, particularly
in the political field, organisation of elections by an impartial body and an
effective system of appeal.
The Code of Good Practice is a governing text aimed at
promoting the harmonisation of electoral norms and at serving as a reference for
evaluating elections. It was adopted by the Council for Democratic Elections and
the Venice Commission and then approved by the Parliamentary Assembly of the
Council of Europe and the Congress of Local and Regional Authorities of Europe.
In a
Declaration adopted on a ministerial level the Committee of Ministers of
the Council of Europe also expressed its support for the Code.
The Code is directed at electoral specialists (members of
electoral commissions, University lecturers) as well as observers, politicians
and, more generally, at all citizens who are electors.
In March 2007 the Venice Commission adopted the Code of
good practice for referendums, which is the counterpart of the Code of good
practice in electoral matters. The document begins by listing the principles of
Europe’s electoral heritage applicable to both elections and referendums
(universal, equal, free, secret and direct suffrage) and the conditions for
implementing those principles (including respect for fundamental rights,
stability of the law, organisation of the ballot by an impartial body, existence
of an effective appeal system), adapting them to the specific features of a
referendum. Its last section focuses on the specific rules applicable to the
referendum, such as unity of substance and form, compliance with all superior
law and the entire legal order, including procedural rules. The guidelines
issued stress that the effect of the referendum must be clearly defined in the
Constitution or the law and that providing for a quorum is not advisable; they
also expand on certain principles concerning popular initiatives, suggesting the
possibility of declaring them partially invalid.
At the request of the Parliamentary Assembly in 2003, the Council for
Democratic Elections, jointly with the OSCE/ODIHR, adopted a questionnaire for
observation of elections. This questionnaire, which may be completed by each
organisation on the occasion of each concrete ballot, allows the observers to
monitor the electoral process before polling day, during voting, and to monitor
the post-voting operations: counting of the votes and declaration of results.
Report on electoral law and
electoral administration in Europe - synthesis study on recurrent challenges and
problematic issues
The main purpose of this study was to identify the recurrent challenges and
weak points in electoral legislation and electoral administration in Europe in
the light of the relevant international standards and good practices. Starting
from the observation that a number of elections have failed to comply with the
principles of Europe’s electoral heritage, it investigates the causes that, in
law or practice, lead to such a situation. The problems identified include the
following: the overall legislative framework may be too complex or unstable; the
bodies responsible for organising elections are not always truly independent,
and the role of those in the seat of power in appointing them is often
predominant; their functioning may lack transparency, and they may be
inadequately trained; electoral lists often leave much to be desired, whether
owing to manipulation or not; the procedures for registering candidates may also
be contrary to the principle of universal suffrage; the election campaign is
another area where many breaches are observed, including biased use of the
media, interference by public authorities, unequal and opaque funding of
campaigns, restrictions on the exercise of fundamental rights during the
campaign. The report considers the running of the ballot and means of avoiding
fraud during the vote and during counting, in particular by ensuring
transparency in the forwarding of results; finally, a procedure of appeal to
independent and impartial bodies is crucial to ensuring that electoral law does
not remain lex imperfecta.
The Council for Democratic Elections adopted in 2003 the
information document for voters. This document provides a general framework of
the information that the authorities of a member State can give to their voters,
and it can be adapted to the individual situation of each State, which was the
case in 2003 and 2004 in Georgia, where 300.000 copies of it were distributed.
Venice Commission
organises training workshops and undertakes assistance missions.
Seminars
Seminar on the European standards of electoral law in the European
constitutionalism (Sofia, May 2004): the reports discussed on this occasion
cover such fundamental issues as advantages and drawbacks of the various
electoral systems, the case-law of the highest national jurisdictions on
electoral disputes, participation of foreigners in the electoral process at the
local level, electoral rights of people with double citizenship and the possible
development of electoral law within the European Union.
Seminar on the organisation of elections by an
impartial body (Belgrade, June 2005): this seminar was principally addressed
to the central election commissions of the countries of Central and Eastern
Europe. The accent was put on four major points: composition and functioning of
the election administration; activities and competencies of the election
administration; transparency and impartiality of the election administration on
election day and after the elections. It promoted the dissemination of the
principles of electoral law and practice allowing, thus, bodies charged
with the organisation of elections to exchange information experience on
the matter.
Seminar on the preconditions for a democratic election
(Bucharest, February 2006): The aim of this event was to emphasise that an
election does not just consist of the election day itself but must be put into
its general context. Elections which are really democratic are only possible if
a certain number of pre-conditions are fulfilled, such as respect for
fundamental rights, equal access to media and financing, the organisation of the
vote by an impartial body and the existence of an efficient complaints and
appeals system.
Electoral training workshops
The Venice Commission holds training workshops on the organisation of
elections which are addressed to people in charge of implementing electoral
legislation. These workshops aim at ensuring the practical implementation of the
principles of the European electoral heritage. So far such workshops took place
in the following countries: Albania, Armenia, Azerbaijan, Georgia, Moldova, "the
Former Republic of Macedonia" and Ukraine.
Electoral training workshop in cooperation with the Central Electoral
Commission of Azerbaijan (Baku, September 2005)
This workshop was organised in view of the legislative elections of 6t
November, 2005. The major topics were as follows:
Pre-electoral period; rights and obligations of the candidates and of
their representatives/proxies during the pre-electoral period and on election
day; rights and obligations of the members of electoral commissions;
Rights and obligations of national and international observers on election
day and during the whole electoral process;
Election day, voting, rights and obligations of the members of the polling
stations commissions;
Counting and publication of the results; electoral disputes.
Electoral assistance missions
The Venice Commission assists national authorities in the implementation of
electoral legislation, if need be. For example, in May 2003 the Venice
Commission gave its assistance to the Constitutional Court of Armenia on an
electoral dispute that arose in the wake of the 19 February 2003 and 5 May 2003
presidential elections. Another example of such assistance is the Venice
Commission's assistance to the Central Election Commission of Georgia in 2003 in
the framework of the legislative elections of 2 November 2003, and later of the
presidential elections of January 2004 and the parliamentary elections of March
2004. The Venice Commission also assisted the Central Electoral Commission of
the Republic of Adjara in June 2004. In September-October 2005, at the request
of the newly appointed Central Electoral Commission of Georgia, the Venice
Commission put at its disposal an expert in electoral law, who assisted the
electoral administration on legal and technical questions in view of preparing
future elections.
Also in 2006, the Venice Commission sent an expert on several missions aimed at
improving the functioning of Georgia's central electoral commission
"Vota" database
The principal aim of the “Vota”
database, created by the Venice Commission Secretariat, is to facilitate access
to the electoral legislation of all Council of Europe member States and other
States which participate in the Commission’s work, such as Kyrgyzstan and
Canada. Around 60 laws, from more than 30 states, have already been introduced
into the database. These laws are currently available in English or French and
will shortly be available in their original language. The constitutional
provisions as well as the opinions and studies of the Venice Commission in the
electoral field are being progressively introduced into the database.
The Code of Good Practice in the
Field of Political Parties brings together the standards relating to political
parties into one single document. This document, which is intended for the
parties themselves and not the states, first recalls the guiding principles for
political parties: rule of law, democracy, non-discrimination, transparency and
openness. Regarding the internal organisation of political parties, it
underlines that everyone must be free to choose whether to be a member of a
political party or not and which party to join. In best practices exclusion
procedures need to be submitted to disciplinary bodies and there must be clear
procedures for reasoned decisions. The organisation of political parties should
be subject to the main principles of representativeness and receptiveness,
responsibility and accountability, as well as transparency. Party leaders must
be democratically elected at any given level. Party funding must comply with the
principles of accountability and transparency. One of the most important
functions of political parties is the elaboration of a programme which in best
practice is the result of the internal debate of party members and its approval
according to established procedures. Programmes lead party action when the party
is in power. More broadly, the general principles that form the basis of this
Code apply also to performance in office and to situations where parties are in
opposition. Party members should clearly make a distinction between their
allegiance to the party and their office duties.
-The
Guidelines on prohibition and dissolution of political parties and analogous
measures
This study emphasises the fact that the
activity of political parties is guaranteed by the freedom of association. In
particular, it points out that the prohibition or enforced dissolution of
political parties is justifiable only in cases where parties advocate the use of
violence or use it as a political means to overthrow the democratic
constitutional order, thereby undermining the rights and freedoms protected by
the Constitution. The legal measures taken to prohibit or enforce the
dissolution of political parties must be the result of a judicial ruling of
unconstitutionality and must be regarded as an exception and governed by the
principle of proportionality.
- The Guidelines
and report on the financing of political parties
This report points out that, if public
funding is granted, it must be aimed, at the minimum, at each party represented
in Parliament. It places emphasis on the transparency of private financing of
parties and possible limitations (a maximum level for each contribution,
prohibition of contributions from enterprises of an industrial or commercial
nature or from religious organisations, prior control by public organs
specialised in electoral matters of contributions by members of parties who wish
to stand as candidates in elections). Where election campaigns are concerned,
its recommendations include a ceiling limit for expenses and the public funding
of campaigns, while pointing to the necessity of permitting private financing.
- The Opinion on
the prohibition of financial contributions to political parties from foreign
sources
This opinion was adopted after the
Commission was approached for an opinion by the European Court of Human Rights
and considers whether prohibiting financial contributions to political parties
from foreign sources is "necessary in a democratic society" under Article 11.2
of the European Convention on Human Rights. It concludes that this may be the
case, for example: if financing from foreign sources is used to pursue aims not
compatible with the Constitution and the laws of the country (for example, the
foreign political party advocates discrimination and violations of human
rights); if it undermines the fairness or integrity of political competition or
leads to distortions of the electoral process or poses a threat to national
territorial integrity; if it inhibits effective democratic development; if such
a prohibition forms part of the State's international obligations. In order to
establish whether the prohibition of financing from abroad is problematic in the
light of Article 11 of the European Convention on Human Rights every individual
case has to be considered separately in the context of the general legislation
on financing of parties as well as the international obligations of the State,
including the obligations emanating from membership of the European Union:
- The
Guidelines and explanatory report on legislation on political parties: some
specific issues
- The
Report on the participation of political parties in elections.
In addition, the Venice Commission has
adopted a number of opinions on legislation on political parties in States such
as
Armenia,
Azerbaijan,
Moldova and
Ukraine.
