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DRAFT JOINT OPINION ON DRAFT AMENDMENTS TO THE ELECTORAL CODE OF THE REPUBLIC OF ARMENIA
by the Venice Commission and OSCE/ODIHR
National Assembly of RA, Armenia
June 14 2006
on the basis of comments by Mr Carlos CLOSA MONTERO (Venice Commission
Member, Spain) Mr Michael KRENNERICH (Venice Commission Electoral
Expert, Germany) Mr Jessie PILGRIM (OSCE/ODIHR Electoral Expert)
I. Introduction
1. This opinion focuses on the electoral reform package that was
sent for consideration to the Venice Commission and OSCE/ODIHR by the
then President of the National Assembly of the Republic of Armenia,
Mr Arthur Baghdasaryan, on 28 March 2006. The reform package consists
of 100 draft amendments to the Electoral Code, four draft amendments to
the Law on Political Parties and 12 draft amendments to the Criminal
Code. The views expressed in this opinion are restricted to the text
of the amendments (CDL-EL(2006)020), and do not refer to the Electoral
Code, the Party Law or the Criminal Code as a whole.
2. These proposed draft amendments have been evaluated against the
background of the most recent joint opinions by the Venice Commission
and OSCE/ODIHR, an unofficial English translation of the current
Electoral Code, as well as the Venice Commission Code of Good Practice
in Electoral Matters.
3. This comment should, for the reasons stated, be read together with
the following documents:
Final Opinion on the Amendments to the Electoral Code of the Republic
of Armenia, by the Venice Commission and OSCE/ODIHR.
Strasbourg/Warsaw, 25 October 2005 (CDL-AD(2005)027).
Electoral Code of the Republic of Armenia (including the amendments
adopted on 17 May 2005 by the National Assembly of Armenia)
(CDL-EL(2006)019).
Draft Law on Changes and Amendments to the Electoral Code of the
Republic of Armenia (CDL-EL(2006)020).
The Code of Good Practice in Electoral Matters of the Venice Commission
(CDL-AD(2002)023rev).
4. Previous joint (interim) opinions and recommendations by the
Venice Commission and OSCE/ODIHR are also applicable as they address
the Electoral Code as a whole and previous electoral amendments,
see e.g. CDL-AD (2005)019, CDL-AD(2005)008; CDL-AD(2004)049,
CDL-AD(2003)021.
5. Evaluating the proposed electoral reform package, one can
distinguish between:
draft amendments which improve the legal framework for elections (Part
II); draft amendments which might have positive effects, but need
further clarification or have to be proved in practice (Part III);
draft amendments which might have ambivalent or negative effects and
should be re-considered (Part IV); recommendations of previous joint
opinions by the Venice Commission and OSCE/ODIHR which have not been
addressed (Part V).
6. The Electoral Code of the Republic of Armenia is a very long
document (141 articles) with very detailed provisions. This may not
hide the fact that, as the former opinion signalled, the biggest
shortcoming in the conduct of elections lies in the implementation of
the Code rather than in the Code itself. Electoral laws alone cannot
guarantee democratic elections. The democratic character of elections
depends first and foremost on the responsibility of the authorities
to properly implement the electoral law and the commitment of all
other election stakeholders (voters, candidates, parties, media etc.)
to conduct democratic elections. As previous opinions have stated,
a major shortcoming in the conduct of the elections in Armenia has
been in the implementation of the Electoral Code. The good faith
implementation of the Code remains crucial for the conduct of genuinely
democratic elections.
7. Technical note: The numbering of articles of the draft amendments is
not identical with the articles in the respective documents (Electoral
Code, Law on Political Parties, Criminal Code). In this comment, first
the numbering of articles of the existing laws will be mentioned,
followed by the number of the articles of the draft amendments.
II. Amendments which improve the legal framework for elections
8. The proposed amendments to the electoral legislation contain
a number of provisions that can be regarded as positive (or at
least unproblematic) steps. Besides minor clarifying provisions,
the following articles should be pointed out here:
9. Right to vote in local elections for non citizens (Article 2,
Paragraph 1 of the Electoral Code): According to Article 2 of the draft
amendments, the right to vote in local elections seems to be granted
generally to all non-citizens who reside in the specific community
(and not only to non-citizens with refugee status). In accordance
with the Council of Europe Framework Convention on the Participation
of Foreigners in Public Life at Local Level , the introduction
of general voting rights for foreign residents in local elections
is greatly welcomed. However, "citizen" is used as a conditioning
term in several places in the articles regulating compilation of
the voter list. Although Paragraph 1 of Article 10 also references
"persons who have the right to vote in accordance with Article 2",
the concern remains that the articles (e.g., Article 11) regulating
the voter list could be applied to limit the rights of non-citizens
in local elections. The articles regulating the voter list should be
amended to prevent the limitation of voting rights of non-citizens
due to the manner in which the voter list is compiled.
10. Secrecy of vote (Article 6 of the Electoral Code): Article 3 of the
draft amendments clarifies that the secrecy of the vote is not only a
right, but also a responsibility (to be understood as an obligation)
of the voter. It also stipulates that control over the free expression
of the voters' will shall be prohibited and prosecuted by law. Against
the background of open voting practices, which have been observed in
Armenian elections, this clarification is welcome.
11. Voter identification (Article 11, Paragraph 3, and Article
55, Paragraph 2 of the Electoral Code): According to Articles 7
and 39 of the draft amendments, not only the voter, but also the
responsible electoral commission member shall sign the voter list,
after proving the voter's identity in the polling station. Such a
signature requirement might be a measure to improve the integrity
of the voter identification process and the accountability of the
election officials. It is also a measure for providing evidence in
the case of violations of the electoral law.
12. Voters per electoral precinct (Article 15, Paragraph 6 of the
Electoral Code): Article 11 of the draft amendments reduces the number
of voters per each electoral precinct from 2,000 to 1,600 voters. This
is an improvement as smaller electoral precincts usually facilitate
the management of the voting process on the election day.
13. Allocation and scheduling of free broadcasting time in public
media (Article 20, Paragraph 2 of the Electoral Code): Article 14 of
the draft amendments provides that the procedures for allocating and
scheduling free airtime on public radio and television shall be set
on the next day (up to now: within three days) after the deadline
for the registration of candidates. If this shorter deadline can be
realised in practice, this will facilitate earlier planning of spots
on radio and television by candidates and parties.
14. Incompatibility between candidature and media coverage (Article
22, Paragraph 1 of the Electoral Code): According to Article 15 of
the draft amendments, reporters and editors not only from public, but
also from other radio and television companies, who are registered
as candidates, shall be prohibited from covering the elections and
hosting radio and TV programmes. It is welcomed that this provision
has been extended to private media.
15. Deadline for income declaration (Article 25, Paragraph 11 of the
Electoral Code): Article 17 of the draft amendments allows candidates
and parties running for the National Assembly to submit their income
and expenditure declarations of pre-election funds by 15 days (up
to now: 6 days) after the end of elections. This is a more realistic
deadline.
16. Rights of proxies (Article 271 of the Electoral Code): Article
20 of the draft amendments clarifies and strengthens the rights
of proxies. For example, it is quite important that they are now
explicitly allowed to be physically near commission members during
voting day procedures. Furthermore, they are now explicitly allowed to
offer observations and recommendations about the work of the electoral
commission to the commission's chairman.
17. Remuneration of Electoral Commission Members (Article 33,
Paragraph 9 of the Electoral Code): Article 23 of the draft amendments
modifies the remuneration conditions of election commission members. Of
particular importance is the fact that, during the period of elections,
not only chairmen, deputy chairmen and secretaries of the respective
Territorial Electoral Commissions and Precinct Electoral Commissions
shall be remunerated, but also ordinary members of TECs and PECs (with
the only exception of court judges, appointed to TECs, and members
of PECs formed in diplomatic or consular missions abroad). The
fact that, in principle, all members of the CEC, TECs and PECs
shall be remunerated is a positive amendment, which may strengthen
their commitment to the commission's duties and reduce the risk of
bribes. At the same time, a failure to carry out responsibilities
for no compelling reason shall now be punishable by law, according
to the amendments.
18. Access to the area of voting booths (Article 48, Paragraph 1
of the Electoral Code): Article 34 of the draft amendments contains
provisions for a limited access area around the voting booths.
Although such provisions usually are not regulated in the electoral law
(but rather in electoral commission instructions) they might be helpful
to guarantee the secrecy of the vote and to prevent group voting.
19. Preparation of ballot envelopes (Article 491, Paragraph 11 of the
Electoral Code): On the basis of Article 35 of the draft amendments,
this new article provides that the preparation of ballot envelopes,
which will be introduced by the draft amendments, shall be ensured by
the Central Election Commission. If several elections are conducted
concurrently, differently coloured envelopes shall be prepared for
every voting event. The colour of the envelopes shall correspond to the
colour of the respective ballots. The introduction of ballot envelopes,
the CEC's responsibility over the production of the envelopes and
the colour issue can generally be regarded as positive.
(However, the way in which both the ballot paper and the ballot
envelopes must be stamped raises concerns; see below).
20. Authentification of ballots (Article 58, Paragraph 1 of the
Electoral Code): According to Article 42 of the draft amendments, to
be valid, ballots must not only be correctly marked and stamped; they
must also be signed by authorised election officials (three members
of the PEC). This is a positive amendment in order to safeguard the
ballot, which reflects the practice that in many countries ballots
bear both an official stamp specific to the polling station and the
signature of authorised election officials.
21. Tabulation and transmission of results (Article 63 of the Electoral
Code): Article 49 of the draft amendments provides additional
safeguards for correction of the PEC protocol by the TEC and the
tabulation and transmission of the TEC results. The amendments also
provide for immediate public posting of the election results at the
TEC. However, the amendments do not provide that published results
are broken down to polling station level which has previously been
recommended by the OSCE/ODIHR.
22. Share of votes required to regain electoral deposits (Articles 71,
79 and 123 of the Electoral Code): Articles 54, 63 and 89 of the draft
amendments stipulate that the required vote share of the candidates
in order to retain electoral deposits are calculated on the basis of
the valid ballots cast. This is a welcome clarification.
23. The option to vote "against all" partially remains in the Electoral
Code, as this is a voting option where there is only one candidate
on the ballot. Although this is some improvement, the Electoral Code
still fails to reflect previous recommendations (see CDL-AD(2005)027,
Paragraph 23) that the option to vote "against all" be completely
removed from the law. Additionally, one-candidate elections should
be discouraged and re-registration considered in an event when there
is only one candidate.
III. Draft amendments which need to be clarified or proved in practice
24. Deadline for publishing information on voter turnout (Article 7,
Paragraph 6, of the Electoral Code): Article 4 of the draft amendments,
besides minor clarifications and modifications, shortens the CEC's
deadline for publishing the final information about voter turnout
in national elections from 12:00 to 1:00 on the following day (it
is assumed that this is 1:00 a.m.). While quick turnout information
is helpful, it remains to be seen whether the deadline is realistic
in practice.
25. Conditions for voter registration (Article 10 of the Electoral
Code): Article 6 of the draft amendments introduces more rigid
conditions for voter registration. It establishes the registered
address as the only basis for voter lists. Furthermore, citizens who
reside or travel outside the country have to submit an application for
out-of-country registration and voting. Finally, the amendments also
specify the conditions for the registration of military servicemen
and their family members. In order to improve voter registration,
in principle the amendments are useful. However, due to the lack of
absentee voting procedures inside the country (see below), voters
who reside temporarily or permanently in a community without being
registered, have to vote in the place of their last registration. It
remains to be seen how the system will work in practice.
26. Proper furnishing of electoral precincts (Article 16, Paragraph 2
of the Electoral Code): Article 12 of the draft amendments provides
that community leaders shall be responsible for "proper furnishing
of the precinct centers located in their particular communities". It
should be clarified in the article what materials, fixtures, and
services constitute "proper furnishing".
27. Observation missions (Article 29, Paragraph 4 of the Electoral
Code): Article 21 of the draft amendments revokes Paragraph 4. This
paragraph provides that, if the number of organisations that have
applied to carrying out an observation mission is so large that it
may cause technical difficulties for voting and vote counting, then
priority shall be given to organisations which guarantee that their
observation mission will cover the entire territory of the Republic
of Armenia. Revocation of this provision is welcomed. It should be
ensured that no bureaucratic barriers and restrictions are created
for electoral observation missions.
28. Authority of persons carrying through observation missions (Article
29, Paragraph 6 of the Electoral Code): According to Article 21 of the
draft amendments, the authority of persons carrying out observation
missions shall be terminated 20 days after the end of elections (up to
now: 10 days). Although the extension of the observers' accreditation
period is welcomed, it would be preferable to extend the possibility
for observation until the announcement of the final results and
adjudication of all election complaints and appeals. The electoral
law should specify that observers have a role and a right to observe
the post-election period and have a right of access to electoral
commissions and documents until all the electoral tasks are completed.
29. Precinct electoral commissions in diplomatic delegations (Article
34, Paragraph 1 of the Code): Adding the words of Article 24 of the
draft amendments to Article 34, Paragraph 1 of the Code, the wording of
the English translation of the Article is grammatically not entirely
clear. It is assumed that judges and members of Precinct Electoral
Commissions formed in diplomatic or consular missions abroad are not
required to undertake electoral training. If this is not an issue of
translation, then the wording of the article might be clarified as
the article could be interpreted to apply only to Precinct Electoral
Commissions formed abroad.
30. President powers for approving the composition of the Central
Electoral Commission (Article 35, Paragraph 3 of the Electoral
Code): Article 25 of the draft amendments sets the President of the
Republic a 10-day deadline for approving the composition of the Central
Electoral Commission on the basis of nominations made by the entities
responsible for forming the Central Electoral Commissions. However,
it has still not been specified whether the Presidential decree
is merely a formality and that the President has no power to veto,
negate, or prevent an appointment by reason of this formality (see also
CDL-AD(2005)027, Paragraph 13). This concern also applies to Article
38, sub-Paragraph 4 of Paragraph 31 added by Article 28 of the draft
amendments, which requires a Presidential decree for filling a vacancy.
31. Staff of the Central Electoral Commission (Article 39, Paragraph
3 of the Electoral Code): Article 29 of the draft amendments revokes
Paragraph 3, which stipulates that the chairman of the Central
Electoral Commission shall form a staff working on a permanent basis.
By revoking such a provision it is not quite clear how permanent
staff activities are organised.
32. Signature of ballots (Article 491, Paragraph 4, and Article 56,
Paragraph 2 of the Electoral Code): According to Articles 35 and 40
of the draft amendments, both the voter and the responsible electoral
commission member have to sign the stub of the ballot before the
bottom part of the ballot is given to the voter. Such a signature
requirement might be an adequate measure to improve the integrity of
the process (and to provide evidence in the case of violations of the
electoral law). However, it must be assured that this procedure does
not permit any attribution of ballots to voters and that the bottom
part of the ballot, which is given to the voter, does not permit any
ex-post voter identification.
33. Electoral documents to be signed (Article 53, Paragraph 1 of
the Electoral Code): the new wording of this Paragraph modified by
Article 38 of the draft amendments is not consistent with regard to
the electoral documents which have to be signed by the members of the
Precinct Electoral Commission. Sometimes only ballots and voter lists
are mentioned. At other times envelopes are also listed. This article
should be reviewed carefully in order to ensure that it describes
precisely the intent of the legislator for regulating this aspect of
the voting process.
34. Replacement of precinct electoral commissions' members (Article
53, Paragraph 2 of the Electoral Code): According to Article 38
of the draft amendments, the Precinct Electoral Commissions shall
decide on the procedures for replacing the commission members in their
aforementioned functions with other commission members. It remains to
be seen how this rotation system works in practice, and if it creates
additional problems.
35. Request to change the colour of the ink for signing ballots
(Article 53, Paragraph 3 of the Electoral Code): Article 38 of
the draft amendments adds a new sentence in Paragraph 3, which
permits a member of the Precinct Electoral Commission or a proxy
to request a change in the colour of ink used for stamping the
ballots and envelopes. However, the article requires a decision on
a request only "if there are different suggestions" on the colour of
the ink. This suggests that a single request must be granted by the
Precinct Electoral Commission. If this is the intent, then it should
be clearly stated in the article. It should also be clearly stated
whether there is any limit on the number of requests that can be made
by a single member of the Precinct Electoral Commission or a proxy.
36. Procedures for counting and summarising votes and preparing
protocols (Articles 60, 601, 61 and 62 of the Electoral Code):
Articles 45, 46, 47 and 48 of the draft amendments provide for a
complex procedure of vote counting, summarising of voting results and
preparing election protocols, which may not be easy to implement by
Precinct Electoral Commissions. This is partly due to the fact that
both the ballot envelopes and the ballot papers have to be checked
separately whether they are established specimen. Furthermore,
intermediate protocols on voting results in intermediate batches are
provided for. Even if the amendments aim at improving the integrity
of the procedure, it remains to be seen whether the procedure works
without difficulties and time delays in practice. Complex procedures
as the one introduced by the draft amendments increase the possibility
for errors and require additional training efforts for members of
PECs. More troublesome, however, is that this undue complexity could
create disruptions in the election processes so serious that some
voters may not have their votes accurately counted and the legitimacy
of an election is placed at risk.
37. Deadline for announcing preliminary results (Article 632, Paragraph
1 of the Electoral Code): Article 51 of the draft amendments shortens
the CEC's deadline for announcing the preliminary results of national
elections from 28 hours to 24 hours after the end of the voting. While
an early announcement of provisional results is desirable, it remains
to be seen if the deadline is realistic in practice. It should be
clear that there is not only a need for an early announcement but
also for a reliable consolidation of provisional results.
38. Election of single candidates standing for a seat (Article 84,
Paragraph 2 of the Electoral Code): Article 67 of the draft amendments
states that "if only one candidate was running, then he/she shall be
considered elected if more than half of the people who participated in
the election voted for him/her." This article does not state how the
number of voters "who participated in the election" is determined. This
could be based on the number of persons who have signed the voters'
lists in the polling stations or it could be based on the number of
ballots found in ballot boxes. It is not uncommon for these numbers
to be different in an election should voters fail to sign the voters
lists or to place a ballot in the ballot box. This article should
provide additional text stating how this number is determined. This
concern also applies to Article 133, Paragraph 2 of the Electoral Code
(Article 96 of the draft amendments). However, to provide voters with
a genuine choice between different candidates, it would be desirable
to have more than one candidate standing in any particular election.
39. Time limits for announcing presidential elections (Article 90,
Paragraph 1 of the Electoral Code): Article 71 of the draft amendments
stipulates that the voting in new presidential elections according
to Article 90 of the Electoral Code shall take place on the 40th day
after the new election is announced (instead of "the 40th day after
the voting day", as it is stipulated in the existing Code).
However, the time limit for the announcement is not specified there.
40. Electoral formula (Article 115, Paragraphs 2, 3, 4, 5, and 9 of
the Electoral Code): Article 84 of the draft amendments establishes
proportional representation and legal thresholds for 90 of the
mandates in the National Assembly. However, the English text does not
precisely describe the mathematical formula for allocating mandates to
and within candidate lists. The mathematical formula for allocating
mandates should be clearly stated so that there is no question as to
what constitutes the proper method of allocating mandates.
41. Conditions for invalidating elections (Article 134, Paragraph 5
of the Electoral Code): Article 97 of the draft amendments provides
that community council member elections are invalid if "the amount
of inaccuracies makes it impossible to determine the winners, whose
number is at least half the number of community council members, as
specified in Article 120, Paragraph 2, i.e. the difference between
the number of ballots cast for the elected candidate and non-elected
candidate is smaller than or equal to the difference between the amount
of inaccuracies and the ratio of the number of community council
member candidates." This text is vague and arbitrarily applies an
"irregularity ratio" to all candidates based on the total number of
irregularities in the election. Further, the invalidation principle in
this text appears to conflict with the invalidation principle provided
in the next sentence in Article 134, Paragraph 5, which requires
invalidation if "such violations of this Code have occurred during
the preparation and conduct of elections, which may have influenced
the outcome of the election." This invalidation principle is based
on potential "influence" regardless of whether the "influence" could
have affected the determination of a winning candidate(s). Article
134, Paragraph 5 should be stated in more precise language and the
principles of invalidation, for both inaccuracies and violations of
the Electoral Code, should be based on whether a determination of
winning candidates may have been affected.
42. Prosecution of electoral violations. Several articles of the
Electoral Code (e.g. Article 6, Article 9, Paragraph 2; Article 12,
Paragraph 2; Article 33, Paragraph 9; Article 63, Paragraph 2; Article
631, Paragraph 10); several articles of the Criminal Code (Articles
149 to 154) and a number of draft amendments to the Electoral Code
(e.g. Articles 3, 5, 8, 23, 49) and to the Criminal Code (Articles 1
to 12) provide for legal punishment, opening criminal cases or tougher
penalties for electoral violations. Given the "culture of impunity"
for election-related offences that has been observed in past elections
in Armenia, in principle it is most welcome that electoral violators
will be held accountable by law.
However, it must be assured that unintended "genuine" errors, which
are committed by relatively inexperienced election stake-holders,
will not be inappropriately criminalised. Furthermore, it should be
borne in mind that it is of little value to include severe penalties
in the law unless illegal practices will in fact be investigated,
prosecuted and punished. Thus, it remains to be seen how the new
amendments will be enforced.
IV. Draft amendments which should be re-considered
43. Training of election commission members (Article 34, Paragraph
1 of the Electoral Code): Article 24 of the draft amendments places
organisation of the professional training of election commission
members with the "bodies and officials who have the authority to
form a Central Electoral Commission"..."together with the Central
Electoral Commission". Further, the right to nominate persons to
receive professional training on conducting elections "belongs
to bodies and officials who have the authority to form a Central
Electoral Commission". Thus, it appears that ordinary citizens
who would like to participate in training and be qualified for
public service in conducting elections for their country cannot
do so without being nominated by an Article 35 benefactor. This is
unfortunate as it politicises an educational process that should be
open to all citizens. This amendment is a step back and makes election
administration less inclusive and pluralistic.
44. Recall of electoral commissions' members (Article 38, sub-paragraph
9 to Paragraph 2 of the Electoral Code): Article 28 of the draft
amendments reintroduces the right to control the actions of nominated
election commission members by allowing the "person or body that has
the right to nominate" to recall the member. The possibility to recall,
which has been previously criticised by the Venice Commission and
OSCE/ODIHR, was removed in 2002. It is troublesome that recall is being
reintroduced since it implies that the person recalled is politically
accountable to the nominating institution. This casts serious doubts
on their neutrality and their ability to perform independently. The
Code of Good Practice in Electoral Matters establishes that bodies that
appoint members to electoral commissions should not be free to recall
them, as it casts doubts on their independence. The reintroduction
of the possibility to recall is a step back that makes the election
administration more political and less independent.
45. Video recording. (Article 47, Paragraph 2 of the Electoral Code):
The authors of the draft amendments have suggested introducing
video recording of voting and the summarising of voting results if
appropriate financial means are available. If such means are not
available, the draft's authors have suggested including a provision
allowing proxies and observers to photograph and video the voting
and summarising of the voting results. Both options are mentioned
in Article 33 of the draft amendments. The use of video cameras
should be carefully considered. Although they might be used to
prevent or document electoral irregularities, they will certainly
have an intimidating effect on voters and might violate the secrecy
of the vote. In many countries, thus, video cameras are not (or only
with special permission) allowed inside the polling station during
the voting process. In the absence of evidence that such a measure
is necessary to deter fraud and reassure voters of the legitimacy
of election processes, the factor of voter intimidation should be
considered as controlling on the issue .
46. Approval of printing and preparation of ballots (Article 491,
Paragraph 6 and 7 of the Electoral Code): Article 35 of the draft
amendments provides that the Central Electoral Commission shall
approve the ballot specimen and ensure the printing and preparation
only of ballots for presidential and National Assembly elections under
the proportional system. In the case of National Assembly elections
under the majoritarian system and local elections, this should be
the responsibility of the Territorial Electoral Commissions. However,
it would constitute better practice if the CEC continued to approve
and ensure the printing and preparation of ballots for all elections,
especially for both the proportional and the majoritarian part of
the National Assembly elections (see CDL-AD(2005) 027, Paragraph
22). The overall responsibility for the production of ballots should
preferably be placed in the hands of the CEC, as will be the case with
the production of ballot envelopes (see new Article 491, Paragraph 11).
47. Checks on voters' identity. (Article 55, Paragraph 2, Article 56,
Paragraph 2, and Article 57, Paragraph 3 of the Electoral Code):
Due to Articles 40 and 41 of the draft amendments, the voter's
identity is being checked three times inside the polling station:
the first time by the commission member who is responsible for voter
registration (according to Article 55, Paragraph 2), the second time
by the commission member who is responsible for stamping the ballot
(according to the revised Article 56, Paragraph 2) and, finally,
by the commission member who is responsible for stamping the ballot
envelope (according to the revised Article 57, Paragraph 3). Although
the proposed multiple voter identification check aims at ensuring the
integrity of the process, it seems to be unnecessary and cumbersome.
First, it is not completely clear on which basis and through which
documents the voter's identity is checked by the commission members
who are responsible for stamping the ballots or the ballot envelopes.
Second, checking voter identity three times inside the polling station
is a very complex and time-consuming process. With an appropriate
layout of polling stations, an effective management of voter flow and a
clear overview of all staff and voter activity by commission members,
proxies and observers, it should be sufficient to check the voter's
identity once.
48. Stamping the ballot (Article 56, Paragraph 2, and Article 57,
Paragraph 3 of the Electoral Code): Articles 40 and 41 of the draft
amendments also provide for stamping both the ballot and the ballot
envelope. Obviously, this double stamping procedure aims at ensuring
the integrity of the electoral documents and the voting process.
However, the way in which the procedure will be conducted is unusually
complex and could be problematic with regard to the secrecy of the
vote. According to the amendments, the voter is first given the ballot
paper by the commission member responsible; then he or she proceeds
to another commission member who stamps the ballot paper and returns
it to the voter together with a ballot envelope; the voter proceeds to
the voting booth, where he or she marks the ballot and puts it into the
ballot envelope; finally, the envelope is stamped by another commission
member, before the voter is allowed to drop the ballot envelope into
the ballot box. Two objections can be raised against such a procedure:
first, according to the Code of Good Practice in Electoral Matters,
the stamping of ballot papers should not take place at the point at
which the ballot is presented to the voter because, theoretically,
the stamp or the signature might mark the ballot in such a way that
the voter could be identified during the count. The second objection
is even more important: after the voter has received the ballot,
as a rule, no one else should touch the ballot from that point on
(see also CDL-AD(2002)023rev, Paragraphs 34-35). Both principles,
which aim at ensuring the secrecy of the vote, are not fully respected
by the draft amendments.
49. Secrecy of vote (Article 56, Paragraph 4 of the Electoral Code):
According to Article 40 of the draft amendments, citizens who are
unable to mark the ballots on their own, shall have the right to invite
two members of the Precinct Electoral Commission or two proxies into
the voting booth with them. Up to now such a voter has the right to
invite "another person (but never a proxy) into the voting booth". At
a first glance, it seems to be an improvement that not only one, but
two persons, who may observe each other, will be allowed to accompany
the voter. However, on closer inspection, the amendment makes it more
difficult for the respective voter to be accompanied by a person of
his/her confidence and to ensure the secrecy of his/her vote. It also
creates the situation where political pressure may be exerted on the
voter in the voting booth.
Permitting a proxy (that is party observer) to enter the voting booth
is unacceptable. Furthermore, the article should describe the process
for voters who are not able to mark the ballots due to blindness or a
condition that requires that information on the ballot be communicated
to the voter.
50. Extraordinary presidential elections during military and emergency
situations. Article 72 of the draft amendments introduces a paragraph
to Article 91 of the Code which prohibits extraordinary presidential
elections during military and emergency situations.
Extraordinary presidential elections shall take place on the 40th
day after the end of the military or emergency situation. While
it can be regarded as appropriate not to conduct elections in the
context of military and emergency situations, there is the danger
that such situations might be provoked or abused in order to prevent
the realisation of extraordinary elections by constitutional means.
51. Payment of election deposits (Article 128, Paragraph 1 of the
Electoral Code): Article 93 of the draft amendments removes the text
"The community leader or council member candidates shall have the right
to use the resources in the pre-election fund to pay their electoral
deposits". This amendment will only make it more difficult for some
citizens to seek candidacy and should be reconsidered.
52. Liquidation of political parties (Article 31, Part 2 of the Law
on Political Parties; Article 2 of the draft amendments) increases
the percentage of votes a political party must receive in order to
avoid liquidation. As recognised by the Constitution and the Law on
Political Parties, a political party can have a role in a democratic
society even when not participating in elections. Liquidation of a
political party should not be based on its performance in the last
two national elections. This concern also applies to Article 31, Part
21 of the Law on Political Parties (Article 3 of the draft amendments).
V. Non-addressed recommendations
53. Various points and recommendations expressed in the previous Joint
Opinion of the Venice Commission and OSCE/ODIHR (CDL-AD(2005)027)
remain fully valid in so far as they are not addressed by the
amendments.
54. Of particular concern are the provisions for filing election
complaints and appeals, which fail to create a sound legal framework
for the adjudication of election disputes and protection of suffrage
rights (see CDL-AD(2005)027, Paragraphs 4 and 27-35). The respective
Articles 40, 401 and 402 of the Election Code have not been modified by
the proposed draft amendments. However, it is of paramount importance
that appeal procedures should be clear, transparent, and easily
understandable. Especially with dual complaint and appeal procedures,
which involve electoral commissions and ordinary courts, the electoral
law should clearly regulate the respective powers and responsibilities
of commissions and courts. Thus, the provisions regarding election
complaints and appeals should be carefully re-considered, taking into
account the suggestions of the previous Joint opinion.
55. The amendments still do not include previous recommendations that
provisions be made for those voters to vote who are unable to attend
their polling station. The lack of absentee voting procedures may
de facto disenfranchise a substantial part of the voters who are not
able to vote in their respective polling station on the election day.
In the case of Armenia, paradoxically, citizens abroad are able
to vote for national elections but not citizens within the country
who are unable to go to their polling station. Such special voting
procedures were omitted from electoral legislation when the original
Election Code was adopted in 1999 in an attempt to reduce fraud.
However, the argument of "unpreventable" fraud is not sufficient
to justify the denial of the voting rights of these citizens. The
suffrage is such a fundamental right that all possible measures should
be taken to uphold it (see CDL-AD(2005)027, Paragraph 19). Of course,
it must be clear that with absentee voting strict conditions should
be imposed to prevent fraud. Alternatively, additional registration
could be introduced on the basis of current or temporary address with
voters having the choice to register this address.
However, the voter register should remain based on the permanent
registered address.
56. In addition to using accurate voters' lists and carefully checking
voters' identities, an effective method to diminish the risk of
"multiple voting" is to mark the voter's finger with indelible
(visible or invisible) ink to indicate that he or she has voted. The
inking of voters' fingers is used in several countries and recommended
for emerging and new democracies. Despite the fact that inking was
repeatedly recommended by Venice Commission and OSCE/ODIHR experts
and was included in previous draft amendments to the Election Code,
both the existing Code and the proposed draft amendments do not provide
for this procedure in Armenia. It is strongly recommended to introduce
such an inking procedure (see also CDL-AD(2005)027, Paragraph 25).
57. The proposed amendments do not address the concern voiced in
the previous joint opinion (CDL-AD(2005)027, Paragraph 12) on who
has the authority to appoint members of the CEC should a coalition or
party alliance break apart. Subsequently, factions (i.e. parliamentary
groups) may carry through this function however based on the Electoral
Code it is not clear whether a "respective faction" can be identified
as a party alliance. Good faith implementation of the provisions on
formation of electoral commissions remains crucial.
58. The previous Joint Opinion (CDL-AD(2005)027, Paragraph 11)
expressed concern relating to the appointment powers of the
President of Armenia over vacancies on the CEC and TECs in emergency
situations. The proposed amendments do not introduce improvements to
these limitations.
59. The election of the Chairperson of the CEC presents some
asymmetries: if there are one or more than two candidates, the
chairperson is elected by absolute majority (50% of the votes plus
one). If there are two candidates, then the one that receives more
votes (a plurality) is elected. For the sake of consistency, the
same requirement should be introduced in the case of two candidates
(this implies a reform of Article 35.9).
VI. Concluding Remarks
60. The proposed amendments to the Electoral Code of Armenia contain
a number of improvements in the legal framework for elections.
Besides many minor clarifying provisions, positive draft amendments
refer, for example, to voting rights for non-citizens in local
elections, the characterisation of the secrecy of the vote as both a
right and an obligation, stricter signature requirements for electoral
documents, smaller sizes of electoral precincts, the improved status
of proxies and the remuneration of election commission members.
61. Some, in principle positive draft amendments may need further
clarification or must be proved in practice. There are still some
unanswered questions with regard to, for example, voter registration,
the presidential role in approving the composition of the Central
Election Commission, the complexity of vote counting, some modified
deadlines, as well as the prosecution of electoral violations.
62. Furthermore there are some draft amendments which might have
ambivalent or negative effects and should be re-considered. Further
discussion might be necessary with regard to, for example,
politicisation of the training process for election commission
members, the right to recall election commission members, the issue
of video-recording voting day procedures inside the polling stations,
the responsibilities for approving the ballot specimen, the multiple
voter identity check, the procedure of stamping ballots and ballot
envelopes, and the assistance to voters who are unable to mark the
ballots on their own.
63. Most important, however, is the fact that some important
recommendations in previous opinions have not been addressed by the
authorities. Of particular concern are the unsatisfactory provisions
for filing election complaints and appeals. Additional recommendations
that remain to be addressed include shortcomings related to the lack
of absentee voting procedures inside the country, the issue of inking,
as well as the ballot option to vote "against all".
64. However, it must also be noted that a major shortcoming in the
conduct of the elections in Armenia has been in the implementation of
the electoral legislation. Good faith implementation of the electoral
legislation remains crucial for the conduct of genuinely democratic
elections.
by the Venice Commission and OSCE/ODIHR
National Assembly of RA, Armenia
June 14 2006
on the basis of comments by Mr Carlos CLOSA MONTERO (Venice Commission
Member, Spain) Mr Michael KRENNERICH (Venice Commission Electoral
Expert, Germany) Mr Jessie PILGRIM (OSCE/ODIHR Electoral Expert)
I. Introduction
1. This opinion focuses on the electoral reform package that was
sent for consideration to the Venice Commission and OSCE/ODIHR by the
then President of the National Assembly of the Republic of Armenia,
Mr Arthur Baghdasaryan, on 28 March 2006. The reform package consists
of 100 draft amendments to the Electoral Code, four draft amendments to
the Law on Political Parties and 12 draft amendments to the Criminal
Code. The views expressed in this opinion are restricted to the text
of the amendments (CDL-EL(2006)020), and do not refer to the Electoral
Code, the Party Law or the Criminal Code as a whole.
2. These proposed draft amendments have been evaluated against the
background of the most recent joint opinions by the Venice Commission
and OSCE/ODIHR, an unofficial English translation of the current
Electoral Code, as well as the Venice Commission Code of Good Practice
in Electoral Matters.
3. This comment should, for the reasons stated, be read together with
the following documents:
Final Opinion on the Amendments to the Electoral Code of the Republic
of Armenia, by the Venice Commission and OSCE/ODIHR.
Strasbourg/Warsaw, 25 October 2005 (CDL-AD(2005)027).
Electoral Code of the Republic of Armenia (including the amendments
adopted on 17 May 2005 by the National Assembly of Armenia)
(CDL-EL(2006)019).
Draft Law on Changes and Amendments to the Electoral Code of the
Republic of Armenia (CDL-EL(2006)020).
The Code of Good Practice in Electoral Matters of the Venice Commission
(CDL-AD(2002)023rev).
4. Previous joint (interim) opinions and recommendations by the
Venice Commission and OSCE/ODIHR are also applicable as they address
the Electoral Code as a whole and previous electoral amendments,
see e.g. CDL-AD (2005)019, CDL-AD(2005)008; CDL-AD(2004)049,
CDL-AD(2003)021.
5. Evaluating the proposed electoral reform package, one can
distinguish between:
draft amendments which improve the legal framework for elections (Part
II); draft amendments which might have positive effects, but need
further clarification or have to be proved in practice (Part III);
draft amendments which might have ambivalent or negative effects and
should be re-considered (Part IV); recommendations of previous joint
opinions by the Venice Commission and OSCE/ODIHR which have not been
addressed (Part V).
6. The Electoral Code of the Republic of Armenia is a very long
document (141 articles) with very detailed provisions. This may not
hide the fact that, as the former opinion signalled, the biggest
shortcoming in the conduct of elections lies in the implementation of
the Code rather than in the Code itself. Electoral laws alone cannot
guarantee democratic elections. The democratic character of elections
depends first and foremost on the responsibility of the authorities
to properly implement the electoral law and the commitment of all
other election stakeholders (voters, candidates, parties, media etc.)
to conduct democratic elections. As previous opinions have stated,
a major shortcoming in the conduct of the elections in Armenia has
been in the implementation of the Electoral Code. The good faith
implementation of the Code remains crucial for the conduct of genuinely
democratic elections.
7. Technical note: The numbering of articles of the draft amendments is
not identical with the articles in the respective documents (Electoral
Code, Law on Political Parties, Criminal Code). In this comment, first
the numbering of articles of the existing laws will be mentioned,
followed by the number of the articles of the draft amendments.
II. Amendments which improve the legal framework for elections
8. The proposed amendments to the electoral legislation contain
a number of provisions that can be regarded as positive (or at
least unproblematic) steps. Besides minor clarifying provisions,
the following articles should be pointed out here:
9. Right to vote in local elections for non citizens (Article 2,
Paragraph 1 of the Electoral Code): According to Article 2 of the draft
amendments, the right to vote in local elections seems to be granted
generally to all non-citizens who reside in the specific community
(and not only to non-citizens with refugee status). In accordance
with the Council of Europe Framework Convention on the Participation
of Foreigners in Public Life at Local Level , the introduction
of general voting rights for foreign residents in local elections
is greatly welcomed. However, "citizen" is used as a conditioning
term in several places in the articles regulating compilation of
the voter list. Although Paragraph 1 of Article 10 also references
"persons who have the right to vote in accordance with Article 2",
the concern remains that the articles (e.g., Article 11) regulating
the voter list could be applied to limit the rights of non-citizens
in local elections. The articles regulating the voter list should be
amended to prevent the limitation of voting rights of non-citizens
due to the manner in which the voter list is compiled.
10. Secrecy of vote (Article 6 of the Electoral Code): Article 3 of the
draft amendments clarifies that the secrecy of the vote is not only a
right, but also a responsibility (to be understood as an obligation)
of the voter. It also stipulates that control over the free expression
of the voters' will shall be prohibited and prosecuted by law. Against
the background of open voting practices, which have been observed in
Armenian elections, this clarification is welcome.
11. Voter identification (Article 11, Paragraph 3, and Article
55, Paragraph 2 of the Electoral Code): According to Articles 7
and 39 of the draft amendments, not only the voter, but also the
responsible electoral commission member shall sign the voter list,
after proving the voter's identity in the polling station. Such a
signature requirement might be a measure to improve the integrity
of the voter identification process and the accountability of the
election officials. It is also a measure for providing evidence in
the case of violations of the electoral law.
12. Voters per electoral precinct (Article 15, Paragraph 6 of the
Electoral Code): Article 11 of the draft amendments reduces the number
of voters per each electoral precinct from 2,000 to 1,600 voters. This
is an improvement as smaller electoral precincts usually facilitate
the management of the voting process on the election day.
13. Allocation and scheduling of free broadcasting time in public
media (Article 20, Paragraph 2 of the Electoral Code): Article 14 of
the draft amendments provides that the procedures for allocating and
scheduling free airtime on public radio and television shall be set
on the next day (up to now: within three days) after the deadline
for the registration of candidates. If this shorter deadline can be
realised in practice, this will facilitate earlier planning of spots
on radio and television by candidates and parties.
14. Incompatibility between candidature and media coverage (Article
22, Paragraph 1 of the Electoral Code): According to Article 15 of
the draft amendments, reporters and editors not only from public, but
also from other radio and television companies, who are registered
as candidates, shall be prohibited from covering the elections and
hosting radio and TV programmes. It is welcomed that this provision
has been extended to private media.
15. Deadline for income declaration (Article 25, Paragraph 11 of the
Electoral Code): Article 17 of the draft amendments allows candidates
and parties running for the National Assembly to submit their income
and expenditure declarations of pre-election funds by 15 days (up
to now: 6 days) after the end of elections. This is a more realistic
deadline.
16. Rights of proxies (Article 271 of the Electoral Code): Article
20 of the draft amendments clarifies and strengthens the rights
of proxies. For example, it is quite important that they are now
explicitly allowed to be physically near commission members during
voting day procedures. Furthermore, they are now explicitly allowed to
offer observations and recommendations about the work of the electoral
commission to the commission's chairman.
17. Remuneration of Electoral Commission Members (Article 33,
Paragraph 9 of the Electoral Code): Article 23 of the draft amendments
modifies the remuneration conditions of election commission members. Of
particular importance is the fact that, during the period of elections,
not only chairmen, deputy chairmen and secretaries of the respective
Territorial Electoral Commissions and Precinct Electoral Commissions
shall be remunerated, but also ordinary members of TECs and PECs (with
the only exception of court judges, appointed to TECs, and members
of PECs formed in diplomatic or consular missions abroad). The
fact that, in principle, all members of the CEC, TECs and PECs
shall be remunerated is a positive amendment, which may strengthen
their commitment to the commission's duties and reduce the risk of
bribes. At the same time, a failure to carry out responsibilities
for no compelling reason shall now be punishable by law, according
to the amendments.
18. Access to the area of voting booths (Article 48, Paragraph 1
of the Electoral Code): Article 34 of the draft amendments contains
provisions for a limited access area around the voting booths.
Although such provisions usually are not regulated in the electoral law
(but rather in electoral commission instructions) they might be helpful
to guarantee the secrecy of the vote and to prevent group voting.
19. Preparation of ballot envelopes (Article 491, Paragraph 11 of the
Electoral Code): On the basis of Article 35 of the draft amendments,
this new article provides that the preparation of ballot envelopes,
which will be introduced by the draft amendments, shall be ensured by
the Central Election Commission. If several elections are conducted
concurrently, differently coloured envelopes shall be prepared for
every voting event. The colour of the envelopes shall correspond to the
colour of the respective ballots. The introduction of ballot envelopes,
the CEC's responsibility over the production of the envelopes and
the colour issue can generally be regarded as positive.
(However, the way in which both the ballot paper and the ballot
envelopes must be stamped raises concerns; see below).
20. Authentification of ballots (Article 58, Paragraph 1 of the
Electoral Code): According to Article 42 of the draft amendments, to
be valid, ballots must not only be correctly marked and stamped; they
must also be signed by authorised election officials (three members
of the PEC). This is a positive amendment in order to safeguard the
ballot, which reflects the practice that in many countries ballots
bear both an official stamp specific to the polling station and the
signature of authorised election officials.
21. Tabulation and transmission of results (Article 63 of the Electoral
Code): Article 49 of the draft amendments provides additional
safeguards for correction of the PEC protocol by the TEC and the
tabulation and transmission of the TEC results. The amendments also
provide for immediate public posting of the election results at the
TEC. However, the amendments do not provide that published results
are broken down to polling station level which has previously been
recommended by the OSCE/ODIHR.
22. Share of votes required to regain electoral deposits (Articles 71,
79 and 123 of the Electoral Code): Articles 54, 63 and 89 of the draft
amendments stipulate that the required vote share of the candidates
in order to retain electoral deposits are calculated on the basis of
the valid ballots cast. This is a welcome clarification.
23. The option to vote "against all" partially remains in the Electoral
Code, as this is a voting option where there is only one candidate
on the ballot. Although this is some improvement, the Electoral Code
still fails to reflect previous recommendations (see CDL-AD(2005)027,
Paragraph 23) that the option to vote "against all" be completely
removed from the law. Additionally, one-candidate elections should
be discouraged and re-registration considered in an event when there
is only one candidate.
III. Draft amendments which need to be clarified or proved in practice
24. Deadline for publishing information on voter turnout (Article 7,
Paragraph 6, of the Electoral Code): Article 4 of the draft amendments,
besides minor clarifications and modifications, shortens the CEC's
deadline for publishing the final information about voter turnout
in national elections from 12:00 to 1:00 on the following day (it
is assumed that this is 1:00 a.m.). While quick turnout information
is helpful, it remains to be seen whether the deadline is realistic
in practice.
25. Conditions for voter registration (Article 10 of the Electoral
Code): Article 6 of the draft amendments introduces more rigid
conditions for voter registration. It establishes the registered
address as the only basis for voter lists. Furthermore, citizens who
reside or travel outside the country have to submit an application for
out-of-country registration and voting. Finally, the amendments also
specify the conditions for the registration of military servicemen
and their family members. In order to improve voter registration,
in principle the amendments are useful. However, due to the lack of
absentee voting procedures inside the country (see below), voters
who reside temporarily or permanently in a community without being
registered, have to vote in the place of their last registration. It
remains to be seen how the system will work in practice.
26. Proper furnishing of electoral precincts (Article 16, Paragraph 2
of the Electoral Code): Article 12 of the draft amendments provides
that community leaders shall be responsible for "proper furnishing
of the precinct centers located in their particular communities". It
should be clarified in the article what materials, fixtures, and
services constitute "proper furnishing".
27. Observation missions (Article 29, Paragraph 4 of the Electoral
Code): Article 21 of the draft amendments revokes Paragraph 4. This
paragraph provides that, if the number of organisations that have
applied to carrying out an observation mission is so large that it
may cause technical difficulties for voting and vote counting, then
priority shall be given to organisations which guarantee that their
observation mission will cover the entire territory of the Republic
of Armenia. Revocation of this provision is welcomed. It should be
ensured that no bureaucratic barriers and restrictions are created
for electoral observation missions.
28. Authority of persons carrying through observation missions (Article
29, Paragraph 6 of the Electoral Code): According to Article 21 of the
draft amendments, the authority of persons carrying out observation
missions shall be terminated 20 days after the end of elections (up to
now: 10 days). Although the extension of the observers' accreditation
period is welcomed, it would be preferable to extend the possibility
for observation until the announcement of the final results and
adjudication of all election complaints and appeals. The electoral
law should specify that observers have a role and a right to observe
the post-election period and have a right of access to electoral
commissions and documents until all the electoral tasks are completed.
29. Precinct electoral commissions in diplomatic delegations (Article
34, Paragraph 1 of the Code): Adding the words of Article 24 of the
draft amendments to Article 34, Paragraph 1 of the Code, the wording of
the English translation of the Article is grammatically not entirely
clear. It is assumed that judges and members of Precinct Electoral
Commissions formed in diplomatic or consular missions abroad are not
required to undertake electoral training. If this is not an issue of
translation, then the wording of the article might be clarified as
the article could be interpreted to apply only to Precinct Electoral
Commissions formed abroad.
30. President powers for approving the composition of the Central
Electoral Commission (Article 35, Paragraph 3 of the Electoral
Code): Article 25 of the draft amendments sets the President of the
Republic a 10-day deadline for approving the composition of the Central
Electoral Commission on the basis of nominations made by the entities
responsible for forming the Central Electoral Commissions. However,
it has still not been specified whether the Presidential decree
is merely a formality and that the President has no power to veto,
negate, or prevent an appointment by reason of this formality (see also
CDL-AD(2005)027, Paragraph 13). This concern also applies to Article
38, sub-Paragraph 4 of Paragraph 31 added by Article 28 of the draft
amendments, which requires a Presidential decree for filling a vacancy.
31. Staff of the Central Electoral Commission (Article 39, Paragraph
3 of the Electoral Code): Article 29 of the draft amendments revokes
Paragraph 3, which stipulates that the chairman of the Central
Electoral Commission shall form a staff working on a permanent basis.
By revoking such a provision it is not quite clear how permanent
staff activities are organised.
32. Signature of ballots (Article 491, Paragraph 4, and Article 56,
Paragraph 2 of the Electoral Code): According to Articles 35 and 40
of the draft amendments, both the voter and the responsible electoral
commission member have to sign the stub of the ballot before the
bottom part of the ballot is given to the voter. Such a signature
requirement might be an adequate measure to improve the integrity of
the process (and to provide evidence in the case of violations of the
electoral law). However, it must be assured that this procedure does
not permit any attribution of ballots to voters and that the bottom
part of the ballot, which is given to the voter, does not permit any
ex-post voter identification.
33. Electoral documents to be signed (Article 53, Paragraph 1 of
the Electoral Code): the new wording of this Paragraph modified by
Article 38 of the draft amendments is not consistent with regard to
the electoral documents which have to be signed by the members of the
Precinct Electoral Commission. Sometimes only ballots and voter lists
are mentioned. At other times envelopes are also listed. This article
should be reviewed carefully in order to ensure that it describes
precisely the intent of the legislator for regulating this aspect of
the voting process.
34. Replacement of precinct electoral commissions' members (Article
53, Paragraph 2 of the Electoral Code): According to Article 38
of the draft amendments, the Precinct Electoral Commissions shall
decide on the procedures for replacing the commission members in their
aforementioned functions with other commission members. It remains to
be seen how this rotation system works in practice, and if it creates
additional problems.
35. Request to change the colour of the ink for signing ballots
(Article 53, Paragraph 3 of the Electoral Code): Article 38 of
the draft amendments adds a new sentence in Paragraph 3, which
permits a member of the Precinct Electoral Commission or a proxy
to request a change in the colour of ink used for stamping the
ballots and envelopes. However, the article requires a decision on
a request only "if there are different suggestions" on the colour of
the ink. This suggests that a single request must be granted by the
Precinct Electoral Commission. If this is the intent, then it should
be clearly stated in the article. It should also be clearly stated
whether there is any limit on the number of requests that can be made
by a single member of the Precinct Electoral Commission or a proxy.
36. Procedures for counting and summarising votes and preparing
protocols (Articles 60, 601, 61 and 62 of the Electoral Code):
Articles 45, 46, 47 and 48 of the draft amendments provide for a
complex procedure of vote counting, summarising of voting results and
preparing election protocols, which may not be easy to implement by
Precinct Electoral Commissions. This is partly due to the fact that
both the ballot envelopes and the ballot papers have to be checked
separately whether they are established specimen. Furthermore,
intermediate protocols on voting results in intermediate batches are
provided for. Even if the amendments aim at improving the integrity
of the procedure, it remains to be seen whether the procedure works
without difficulties and time delays in practice. Complex procedures
as the one introduced by the draft amendments increase the possibility
for errors and require additional training efforts for members of
PECs. More troublesome, however, is that this undue complexity could
create disruptions in the election processes so serious that some
voters may not have their votes accurately counted and the legitimacy
of an election is placed at risk.
37. Deadline for announcing preliminary results (Article 632, Paragraph
1 of the Electoral Code): Article 51 of the draft amendments shortens
the CEC's deadline for announcing the preliminary results of national
elections from 28 hours to 24 hours after the end of the voting. While
an early announcement of provisional results is desirable, it remains
to be seen if the deadline is realistic in practice. It should be
clear that there is not only a need for an early announcement but
also for a reliable consolidation of provisional results.
38. Election of single candidates standing for a seat (Article 84,
Paragraph 2 of the Electoral Code): Article 67 of the draft amendments
states that "if only one candidate was running, then he/she shall be
considered elected if more than half of the people who participated in
the election voted for him/her." This article does not state how the
number of voters "who participated in the election" is determined. This
could be based on the number of persons who have signed the voters'
lists in the polling stations or it could be based on the number of
ballots found in ballot boxes. It is not uncommon for these numbers
to be different in an election should voters fail to sign the voters
lists or to place a ballot in the ballot box. This article should
provide additional text stating how this number is determined. This
concern also applies to Article 133, Paragraph 2 of the Electoral Code
(Article 96 of the draft amendments). However, to provide voters with
a genuine choice between different candidates, it would be desirable
to have more than one candidate standing in any particular election.
39. Time limits for announcing presidential elections (Article 90,
Paragraph 1 of the Electoral Code): Article 71 of the draft amendments
stipulates that the voting in new presidential elections according
to Article 90 of the Electoral Code shall take place on the 40th day
after the new election is announced (instead of "the 40th day after
the voting day", as it is stipulated in the existing Code).
However, the time limit for the announcement is not specified there.
40. Electoral formula (Article 115, Paragraphs 2, 3, 4, 5, and 9 of
the Electoral Code): Article 84 of the draft amendments establishes
proportional representation and legal thresholds for 90 of the
mandates in the National Assembly. However, the English text does not
precisely describe the mathematical formula for allocating mandates to
and within candidate lists. The mathematical formula for allocating
mandates should be clearly stated so that there is no question as to
what constitutes the proper method of allocating mandates.
41. Conditions for invalidating elections (Article 134, Paragraph 5
of the Electoral Code): Article 97 of the draft amendments provides
that community council member elections are invalid if "the amount
of inaccuracies makes it impossible to determine the winners, whose
number is at least half the number of community council members, as
specified in Article 120, Paragraph 2, i.e. the difference between
the number of ballots cast for the elected candidate and non-elected
candidate is smaller than or equal to the difference between the amount
of inaccuracies and the ratio of the number of community council
member candidates." This text is vague and arbitrarily applies an
"irregularity ratio" to all candidates based on the total number of
irregularities in the election. Further, the invalidation principle in
this text appears to conflict with the invalidation principle provided
in the next sentence in Article 134, Paragraph 5, which requires
invalidation if "such violations of this Code have occurred during
the preparation and conduct of elections, which may have influenced
the outcome of the election." This invalidation principle is based
on potential "influence" regardless of whether the "influence" could
have affected the determination of a winning candidate(s). Article
134, Paragraph 5 should be stated in more precise language and the
principles of invalidation, for both inaccuracies and violations of
the Electoral Code, should be based on whether a determination of
winning candidates may have been affected.
42. Prosecution of electoral violations. Several articles of the
Electoral Code (e.g. Article 6, Article 9, Paragraph 2; Article 12,
Paragraph 2; Article 33, Paragraph 9; Article 63, Paragraph 2; Article
631, Paragraph 10); several articles of the Criminal Code (Articles
149 to 154) and a number of draft amendments to the Electoral Code
(e.g. Articles 3, 5, 8, 23, 49) and to the Criminal Code (Articles 1
to 12) provide for legal punishment, opening criminal cases or tougher
penalties for electoral violations. Given the "culture of impunity"
for election-related offences that has been observed in past elections
in Armenia, in principle it is most welcome that electoral violators
will be held accountable by law.
However, it must be assured that unintended "genuine" errors, which
are committed by relatively inexperienced election stake-holders,
will not be inappropriately criminalised. Furthermore, it should be
borne in mind that it is of little value to include severe penalties
in the law unless illegal practices will in fact be investigated,
prosecuted and punished. Thus, it remains to be seen how the new
amendments will be enforced.
IV. Draft amendments which should be re-considered
43. Training of election commission members (Article 34, Paragraph
1 of the Electoral Code): Article 24 of the draft amendments places
organisation of the professional training of election commission
members with the "bodies and officials who have the authority to
form a Central Electoral Commission"..."together with the Central
Electoral Commission". Further, the right to nominate persons to
receive professional training on conducting elections "belongs
to bodies and officials who have the authority to form a Central
Electoral Commission". Thus, it appears that ordinary citizens
who would like to participate in training and be qualified for
public service in conducting elections for their country cannot
do so without being nominated by an Article 35 benefactor. This is
unfortunate as it politicises an educational process that should be
open to all citizens. This amendment is a step back and makes election
administration less inclusive and pluralistic.
44. Recall of electoral commissions' members (Article 38, sub-paragraph
9 to Paragraph 2 of the Electoral Code): Article 28 of the draft
amendments reintroduces the right to control the actions of nominated
election commission members by allowing the "person or body that has
the right to nominate" to recall the member. The possibility to recall,
which has been previously criticised by the Venice Commission and
OSCE/ODIHR, was removed in 2002. It is troublesome that recall is being
reintroduced since it implies that the person recalled is politically
accountable to the nominating institution. This casts serious doubts
on their neutrality and their ability to perform independently. The
Code of Good Practice in Electoral Matters establishes that bodies that
appoint members to electoral commissions should not be free to recall
them, as it casts doubts on their independence. The reintroduction
of the possibility to recall is a step back that makes the election
administration more political and less independent.
45. Video recording. (Article 47, Paragraph 2 of the Electoral Code):
The authors of the draft amendments have suggested introducing
video recording of voting and the summarising of voting results if
appropriate financial means are available. If such means are not
available, the draft's authors have suggested including a provision
allowing proxies and observers to photograph and video the voting
and summarising of the voting results. Both options are mentioned
in Article 33 of the draft amendments. The use of video cameras
should be carefully considered. Although they might be used to
prevent or document electoral irregularities, they will certainly
have an intimidating effect on voters and might violate the secrecy
of the vote. In many countries, thus, video cameras are not (or only
with special permission) allowed inside the polling station during
the voting process. In the absence of evidence that such a measure
is necessary to deter fraud and reassure voters of the legitimacy
of election processes, the factor of voter intimidation should be
considered as controlling on the issue .
46. Approval of printing and preparation of ballots (Article 491,
Paragraph 6 and 7 of the Electoral Code): Article 35 of the draft
amendments provides that the Central Electoral Commission shall
approve the ballot specimen and ensure the printing and preparation
only of ballots for presidential and National Assembly elections under
the proportional system. In the case of National Assembly elections
under the majoritarian system and local elections, this should be
the responsibility of the Territorial Electoral Commissions. However,
it would constitute better practice if the CEC continued to approve
and ensure the printing and preparation of ballots for all elections,
especially for both the proportional and the majoritarian part of
the National Assembly elections (see CDL-AD(2005) 027, Paragraph
22). The overall responsibility for the production of ballots should
preferably be placed in the hands of the CEC, as will be the case with
the production of ballot envelopes (see new Article 491, Paragraph 11).
47. Checks on voters' identity. (Article 55, Paragraph 2, Article 56,
Paragraph 2, and Article 57, Paragraph 3 of the Electoral Code):
Due to Articles 40 and 41 of the draft amendments, the voter's
identity is being checked three times inside the polling station:
the first time by the commission member who is responsible for voter
registration (according to Article 55, Paragraph 2), the second time
by the commission member who is responsible for stamping the ballot
(according to the revised Article 56, Paragraph 2) and, finally,
by the commission member who is responsible for stamping the ballot
envelope (according to the revised Article 57, Paragraph 3). Although
the proposed multiple voter identification check aims at ensuring the
integrity of the process, it seems to be unnecessary and cumbersome.
First, it is not completely clear on which basis and through which
documents the voter's identity is checked by the commission members
who are responsible for stamping the ballots or the ballot envelopes.
Second, checking voter identity three times inside the polling station
is a very complex and time-consuming process. With an appropriate
layout of polling stations, an effective management of voter flow and a
clear overview of all staff and voter activity by commission members,
proxies and observers, it should be sufficient to check the voter's
identity once.
48. Stamping the ballot (Article 56, Paragraph 2, and Article 57,
Paragraph 3 of the Electoral Code): Articles 40 and 41 of the draft
amendments also provide for stamping both the ballot and the ballot
envelope. Obviously, this double stamping procedure aims at ensuring
the integrity of the electoral documents and the voting process.
However, the way in which the procedure will be conducted is unusually
complex and could be problematic with regard to the secrecy of the
vote. According to the amendments, the voter is first given the ballot
paper by the commission member responsible; then he or she proceeds
to another commission member who stamps the ballot paper and returns
it to the voter together with a ballot envelope; the voter proceeds to
the voting booth, where he or she marks the ballot and puts it into the
ballot envelope; finally, the envelope is stamped by another commission
member, before the voter is allowed to drop the ballot envelope into
the ballot box. Two objections can be raised against such a procedure:
first, according to the Code of Good Practice in Electoral Matters,
the stamping of ballot papers should not take place at the point at
which the ballot is presented to the voter because, theoretically,
the stamp or the signature might mark the ballot in such a way that
the voter could be identified during the count. The second objection
is even more important: after the voter has received the ballot,
as a rule, no one else should touch the ballot from that point on
(see also CDL-AD(2002)023rev, Paragraphs 34-35). Both principles,
which aim at ensuring the secrecy of the vote, are not fully respected
by the draft amendments.
49. Secrecy of vote (Article 56, Paragraph 4 of the Electoral Code):
According to Article 40 of the draft amendments, citizens who are
unable to mark the ballots on their own, shall have the right to invite
two members of the Precinct Electoral Commission or two proxies into
the voting booth with them. Up to now such a voter has the right to
invite "another person (but never a proxy) into the voting booth". At
a first glance, it seems to be an improvement that not only one, but
two persons, who may observe each other, will be allowed to accompany
the voter. However, on closer inspection, the amendment makes it more
difficult for the respective voter to be accompanied by a person of
his/her confidence and to ensure the secrecy of his/her vote. It also
creates the situation where political pressure may be exerted on the
voter in the voting booth.
Permitting a proxy (that is party observer) to enter the voting booth
is unacceptable. Furthermore, the article should describe the process
for voters who are not able to mark the ballots due to blindness or a
condition that requires that information on the ballot be communicated
to the voter.
50. Extraordinary presidential elections during military and emergency
situations. Article 72 of the draft amendments introduces a paragraph
to Article 91 of the Code which prohibits extraordinary presidential
elections during military and emergency situations.
Extraordinary presidential elections shall take place on the 40th
day after the end of the military or emergency situation. While
it can be regarded as appropriate not to conduct elections in the
context of military and emergency situations, there is the danger
that such situations might be provoked or abused in order to prevent
the realisation of extraordinary elections by constitutional means.
51. Payment of election deposits (Article 128, Paragraph 1 of the
Electoral Code): Article 93 of the draft amendments removes the text
"The community leader or council member candidates shall have the right
to use the resources in the pre-election fund to pay their electoral
deposits". This amendment will only make it more difficult for some
citizens to seek candidacy and should be reconsidered.
52. Liquidation of political parties (Article 31, Part 2 of the Law
on Political Parties; Article 2 of the draft amendments) increases
the percentage of votes a political party must receive in order to
avoid liquidation. As recognised by the Constitution and the Law on
Political Parties, a political party can have a role in a democratic
society even when not participating in elections. Liquidation of a
political party should not be based on its performance in the last
two national elections. This concern also applies to Article 31, Part
21 of the Law on Political Parties (Article 3 of the draft amendments).
V. Non-addressed recommendations
53. Various points and recommendations expressed in the previous Joint
Opinion of the Venice Commission and OSCE/ODIHR (CDL-AD(2005)027)
remain fully valid in so far as they are not addressed by the
amendments.
54. Of particular concern are the provisions for filing election
complaints and appeals, which fail to create a sound legal framework
for the adjudication of election disputes and protection of suffrage
rights (see CDL-AD(2005)027, Paragraphs 4 and 27-35). The respective
Articles 40, 401 and 402 of the Election Code have not been modified by
the proposed draft amendments. However, it is of paramount importance
that appeal procedures should be clear, transparent, and easily
understandable. Especially with dual complaint and appeal procedures,
which involve electoral commissions and ordinary courts, the electoral
law should clearly regulate the respective powers and responsibilities
of commissions and courts. Thus, the provisions regarding election
complaints and appeals should be carefully re-considered, taking into
account the suggestions of the previous Joint opinion.
55. The amendments still do not include previous recommendations that
provisions be made for those voters to vote who are unable to attend
their polling station. The lack of absentee voting procedures may
de facto disenfranchise a substantial part of the voters who are not
able to vote in their respective polling station on the election day.
In the case of Armenia, paradoxically, citizens abroad are able
to vote for national elections but not citizens within the country
who are unable to go to their polling station. Such special voting
procedures were omitted from electoral legislation when the original
Election Code was adopted in 1999 in an attempt to reduce fraud.
However, the argument of "unpreventable" fraud is not sufficient
to justify the denial of the voting rights of these citizens. The
suffrage is such a fundamental right that all possible measures should
be taken to uphold it (see CDL-AD(2005)027, Paragraph 19). Of course,
it must be clear that with absentee voting strict conditions should
be imposed to prevent fraud. Alternatively, additional registration
could be introduced on the basis of current or temporary address with
voters having the choice to register this address.
However, the voter register should remain based on the permanent
registered address.
56. In addition to using accurate voters' lists and carefully checking
voters' identities, an effective method to diminish the risk of
"multiple voting" is to mark the voter's finger with indelible
(visible or invisible) ink to indicate that he or she has voted. The
inking of voters' fingers is used in several countries and recommended
for emerging and new democracies. Despite the fact that inking was
repeatedly recommended by Venice Commission and OSCE/ODIHR experts
and was included in previous draft amendments to the Election Code,
both the existing Code and the proposed draft amendments do not provide
for this procedure in Armenia. It is strongly recommended to introduce
such an inking procedure (see also CDL-AD(2005)027, Paragraph 25).
57. The proposed amendments do not address the concern voiced in
the previous joint opinion (CDL-AD(2005)027, Paragraph 12) on who
has the authority to appoint members of the CEC should a coalition or
party alliance break apart. Subsequently, factions (i.e. parliamentary
groups) may carry through this function however based on the Electoral
Code it is not clear whether a "respective faction" can be identified
as a party alliance. Good faith implementation of the provisions on
formation of electoral commissions remains crucial.
58. The previous Joint Opinion (CDL-AD(2005)027, Paragraph 11)
expressed concern relating to the appointment powers of the
President of Armenia over vacancies on the CEC and TECs in emergency
situations. The proposed amendments do not introduce improvements to
these limitations.
59. The election of the Chairperson of the CEC presents some
asymmetries: if there are one or more than two candidates, the
chairperson is elected by absolute majority (50% of the votes plus
one). If there are two candidates, then the one that receives more
votes (a plurality) is elected. For the sake of consistency, the
same requirement should be introduced in the case of two candidates
(this implies a reform of Article 35.9).
VI. Concluding Remarks
60. The proposed amendments to the Electoral Code of Armenia contain
a number of improvements in the legal framework for elections.
Besides many minor clarifying provisions, positive draft amendments
refer, for example, to voting rights for non-citizens in local
elections, the characterisation of the secrecy of the vote as both a
right and an obligation, stricter signature requirements for electoral
documents, smaller sizes of electoral precincts, the improved status
of proxies and the remuneration of election commission members.
61. Some, in principle positive draft amendments may need further
clarification or must be proved in practice. There are still some
unanswered questions with regard to, for example, voter registration,
the presidential role in approving the composition of the Central
Election Commission, the complexity of vote counting, some modified
deadlines, as well as the prosecution of electoral violations.
62. Furthermore there are some draft amendments which might have
ambivalent or negative effects and should be re-considered. Further
discussion might be necessary with regard to, for example,
politicisation of the training process for election commission
members, the right to recall election commission members, the issue
of video-recording voting day procedures inside the polling stations,
the responsibilities for approving the ballot specimen, the multiple
voter identity check, the procedure of stamping ballots and ballot
envelopes, and the assistance to voters who are unable to mark the
ballots on their own.
63. Most important, however, is the fact that some important
recommendations in previous opinions have not been addressed by the
authorities. Of particular concern are the unsatisfactory provisions
for filing election complaints and appeals. Additional recommendations
that remain to be addressed include shortcomings related to the lack
of absentee voting procedures inside the country, the issue of inking,
as well as the ballot option to vote "against all".
64. However, it must also be noted that a major shortcoming in the
conduct of the elections in Armenia has been in the implementation of
the electoral legislation. Good faith implementation of the electoral
legislation remains crucial for the conduct of genuinely democratic
elections.