On the recommendations of OSCE ODIHR and the Venice Commission of the Council of Europe, and last additions and amendments to the Election Code in Milli Majlis of the Azerbaijan Republic
Baku – 2008
The abbreviations used within the text:

OSCE ODIHR – OSCE Office for Democratic Institutions and Human Rights
JWG IIHRSA – Joint Working Group on Implementation of International Standards of Human Rights in Azerbaijan
AR EC – Azerbaijan Republic Election Code
CEC – Central Election Commission
CoEC – Constituency Election Commission
PEC – Precinct Election Commission

Table of contents:

1. Preamble
2. The recommendations of the Venice Commission of the Council of Europe
3. Commentary on additions and amendments to the Election Code of the Azerbaijan Republic
4. The result

Preamble

After the restoration of the national independence on October 18, 1991, the Azerbaijan Republic has made a progress in the Westward integration and the formation of a free civic society. The admission of Azerbaijan to the Council of Europe, signing of the activity plan on an extensive cooperation with the European Union, joining of several international pacts and conventions prove it clearly.
One of the top priorities in the process of formation of civic society and democratization is conducting of free, fair and transparent elections. Thus, since 1997 the government of Azerbaijan has been closely cooperating with OSCE Office for Democratic Institutions and Human Rights with the purpose of admission of election legislation due to international standards. After the admission of Azerbaijan to the Council of Europe in 2000, the frame of the cooperation was expanded with involvement of the Venice Commission of the Council of Europe to this process.
Since 1991, 9 election campaigns of different levels have been conducted in Azerbaijan. Each election, comparing with the previous ones can be evaluated as a step forward on the way of improvement of elections to the international standards. The comparative analysis of the opinions of international organizations on the elections proves it. At the same time, it must be noted that despite the progress, there are still flaws and shortages.
Alongside the political parties, the NGOs and other representatives of the public, the Council of Europe, OSCE ODIHR, the Venice Commission of the Council of Europe, International Fund of Elections (IFES), US Institutions of National Democracy and Republic, the representatives of the embassies accredited to Azerbaijan help the government of Azerbaijan closely.
It must be noted that the Venice Commission of the Council of Europe made several recommendations on amendment to the Election Code in the eve of the 2003 presidential elections, the 2004 municipal elections and the 2005 election to Milli Majlis. OSCE ODIHR, the Venice Commission of the Council of Europe and IFES organized four meetings with the government of Azerbaijan in Strasburg and Baku from 2006 to 2008 in order to analyze the different drafts of the amendments. As a result of the discussions, in May 2008 Milli Majlis of the Azerbaijan Republic was submitted the draft of the additions and amendments to the Election Code; on June 2, 2008 Milli Majlis adopted the additions and amendments to the Election Code. In those the additions and amendments to the Election Code some of the recommendations of the Venice Commission of the Council of Europe were taken into account while the others are still subjects of discussions.
After the adoption of the additions and amendments to the Election Code, in the eve of the 2008 presidential elections, the Resolution 11627 was adopted in connection with the elections to be held in Azerbaijan. However, the attitude within the country towards that Resolution and the recommendations of the Venice Commission of the Council of Europe on elections was not univocal. The government- and opposition-backed mass media comments the issues differently, even oppositely which causes confusion among citizens. Thus, there is a serious need for an objective position of the institution of civic society on the same issues.
Therefore, JWG IIHRSA conducted the monitoring of the documents connected with the election legislation and elaborated the Package of final opinions and proposals in connection with the same issue, having led a comparative analysis of the recommendations of the Venice Commission of the Council of Europe to the Election Code in 2003-2008 with the amendments to the Election Code adopted by Milli Majlis. The elaborated documents have been translated into English and discussed with the foreign experts of the Group (see list in attachment). The Package of final opinions and proposals is introduced to the public after the joint discussion of the local and foreign experts.

Recommendations of the Venice Commission of the Council of Europe

The Venice Commission of the Council of Europe made several recommendations to the Election Code of the Azerbaijan Republic in the eve of the 2008 presidential elections. Those include mostly below mentioned:
• Corresponding amendments to the Election Code and Civil Code which regulates the mechanisms of filing of complaints and appeals on violation of the election rights and their considering;
• Formation of the election commissions on a parity basis;
• Elaboration of more efficient legal mechanisms to conduct objective investigations connected with the facts of illegal intervention of the governmental bodies to the election process as well as the activity of election commissions and agitation campaign, and to subject accused persons to liabilities;
• Making amendments to the Election Code to secure considering of complaints by an election commission, conducting of voting on each complaint and documenting of the decisions of the election commissions of on complaints;
• Investigation of the complaint appealed to the CEC, not by a member of an employee of the CEC, but by this organization itself in a collegial rule;
• Determination of the cases when complaints may be appealed to a court or an election commission;
• Amendment of the provision on refusal of registration of candidates (There must be an amendment in the Election Code on cancellation of registration of candidates. Cancellation of registration of candidates must be limited when the candidate doesn’t respond the demands);
• Determination of places for pre-election popular measures;
• Improvement of the campaign law;
• Changes of the provisions on financing;
• Change of the procedure of cancellation of registration;
• Change of date of announcement of the primary results;
• Improvement of the system of considering of complaints after the elections; Signing of complaints;
• Looking through of the norms which limits the direct appeal to the prosecutor office on crime facts and gives such a right to only election commissions;
• Determination of procedures to secure just and objective investigation of pretensions on cancellation of results of elections;
• Looking through of the norms of the Law on the Constitutional Court which regulate confirmation of results of elections, especially considering of complaints on cancellation of results of elections.

It can be noted that the issues on implementation of the submitted proposals were discussed at the meetings of the Venice Commission of the Council of Europe on March 14-15, June 2, and June 12, 2008.

Commentary on additions and amendments to the Election Code of the Azerbaijan Republic

Milli Mejlis of the Azerbaijan Republic, with taking into account the recommendations of the Venice Commission of the Council of Europe as well a number of local and international organizations made in total 91 additions and amendments to 145 articles of the Election Code of the Azerbaijan Republic on June 2, 2008:

• According to the amendment to the Article 8.1, elections (referenda) shall be announced 75 days before the voting day, not 120 days as in the previous edition. Reduction of the timeline of the election process from 120 days to 75 days cannot be estimated as a negative case as less time is shared for the election process in several leading countries. For example, it is 45 days in Hungary, 60 days in the neighboring Georgia, 72 days in Romania, 90 days in Russia (however, it is possible to conduct both the parliamentary and presidential elections within this time).
In this context in the reality of Azerbaijan the timeline of 75 days for the election process should be considered normal.
• The Venice Commission expressed its concern on the conduct of the presidential election on a working day; this concern has already been removed. According to the last amendment to the Election Code, the Article 8.2 is expressed in this edition: “Voting Day shall not be considered a working day in the area of election (referendum)”.
• A special provision (Article 111.1) on prohibition of illegal intervention to the activity of election commissions was also included to the Election Code which makes conditions for independent work of the commissions.
• According to the special Article (111.2) included to the Election Code “It causes criminal liabilities implied by the Criminal Code of the Azerbaijan Republic to prevent implementation of rights of participation in elections of citizens, to compel a citizen to sign for a candidate or to prevent his/her voting, to intervene or to influence work of commissions, to falsify or to submit documents in election (referendum), not to count votes correctly deliberately, not to determine results of voting correctly or to violate surreptitiousness of voting, to vote in place of other persons, to drop more than one ballot-paper to a ballot-box”; this should be considered as a serious warning against an illegal intervention in any form to the election process in general.
Parallel to these amendments, it secures a legal power of the amendments made to the Election code to make corresponding amendments to the criminal legislation and to include cases that cause of violation of election right to the disposition of corresponding articles of the Criminal Code of the Azerbaijan Republic.
• According to the Article 13.3.4 in the previous edition of the Election Code, there was a provision that citizens of Azerbaijan that have liabilities before another country shall not have a passive suffrage. However, it was not explained what kind of liabilities were implied. According to the addition to that Article, the matter of those liabilities is explained. This amendment should be estimated as taking into account of the recommendation of the Venice Commission on that issue.
• A provision on restoration of authorities of commission members whose authorities were abolished for interim after the official announcement of results of elections was included to the Article 22.1 of the Code. Thus, the element which might prevent the activity of election commission on a constant basis has been removed.
• Article 25.2.23 was included to the Code; according to that Amendment, exit-poll leading organizations shall have to be accredited in the CEC; the CEC also determines the rules of accreditation. This provision should not be estimated as a prevent or limitation of activity of exit-poll leading organizations. The newly added article implies the accreditation of exit-poll leading organizations only in the CEC and prevents an unserious attitude to this measure. Because any organization to claim to lead an exit-poll shall have to enough power to conduct that measure to reflect real results of elections. After accreditation an exit-poll leading organization works independently, finishes its work according to the legislation without any foreign influence in determination and announcement of results of elections.
Related to this issue, it may be noted that according to the amendment to the Law on Non-Governmental Organizations by Milli Majlis, the NGOs in Azerbaijan received right to conduct exit-poll in these elections for the first time.
According to the amendments, observers as well as agents appointed by the registered candidates to constituency and precinct election commission will be given a special miniboard, not a verification card implied previously (Amendment 30) (Article 72.2). In this case, each person directly involved to the election process shall have to wear a relevant miniboard on his/.her collar; actually it is steps against an illegal enter to a precinct and intervention to the election process of other persons not related to voting.
• One of the remarkable amendments to the Election Code is an abolition of envelopes for ballot-papers. There was a provision in the Article 106.3 of the previous Code to imply which votes might be considered unreliable while counting of votes. That article was excluded from the Code. In general, the existence of envelopes in a process of counting of votes caused additional problems and made some real votes unreliable. For example, a ballot-box might be considered unreliable having been dropped into a ballot-box without an envelope by mistake by a voter or having not had a stamp on an envelope of a ballot-box by mistake of a member of an election commission. According to the new amendment, such obstacles have been removed; therefore, this amendment should be praised.
• Another amendment is on compilation of citizens to a voters list by the CEC whose names were not in that list. According to the previous Code, the citizens who have not been included in the voters list for any reason had to be included to voters list by a court decision 35 days prior to elections or on a voting day. This case caused great problems and dissatisfactions in the previous elections. Thousands of voters who have not been included in the voters list appealed law-courts. In some cases their claim were secured; however, some appeals were unsuccessful because it was out of power of the law-courts to consider so many appeals within a day and to make a correct decision. In most of cases the citizens who have not been included in the voters list didn’t appeal the law courts and consequently were deprived to take part in the voting. It is necessary to note that there were some abuse cases. According to the last amendment, a voter appeals PEC with his/her identity card and takes part in voting with a decision of PEC on information on the identity card.
• One of the recommendations of the Venice Commission was importance of showing of numbers of houses and flats of citizens on voters’ lists; that demand was implemented (Amendment 20). This amendment serves for transparency of voters lists.
• According to another amendment (Amendment 22; Article 54.5.4), powers of attorney of authorized representatives of political parties are formalized in Milli Majlis of the Azerbaijan Republic in an implied rule, while they were formalized by a notary office. This allows an authorized representative to formalize not only by notary office, but in local execution office, municipality according to the legislation. Therefore, the limitation on formalization of powers of attorney by notary office has been removed.
• The Amendment 24 on abolition of registration deposit is disputed. We think that the registration deposit should have been removed for presidential candidates as 40000 voters` signatures for a presidency claimer would not be a problem (it is one of the remarkable amendments to change 45000 voters` signatures to 40000).
• The amendment on broadcasting of pre-election campaign by only public TV and radio organizations imply actually transformation of functions and authorities of AZTV related to pre-election campaign to ITV. The core of the issue doesn’t change and it is actually a norm adopted in other countries. Merely, as the public TV and radio organization was established after the adoption of the previous Election Code, that amendment is made now.
• Another amendment is related to pre-election campaign (Amendment 37). According to that amendment, a new Article 81.11 was included in the Code. The Article says: “Allocation of airtime on TV and radio for pre-election campaign with paid basis is conducted in accordance with the legislation on advertisement”.
• According to another amendment, it is prohibited to place material of pre-election campaign in buildings and other objects other than rooms (Amendment 38). This amendment had undoubtedly positive features. Because it is known how buildings, show windows and walls in the city are filled with pictures of candidates and other campaign materials during each election. It is remarkable to abolish by the legislation. At the same time, we consider that the number of the special places and advertisement billboards to be shared equally for all the candidates.
• Another amendment is related to signing of fingers of voters with invisible ink on the voting day. This amendment was amongst the recommendations of the Venice Commission. As it is known, prior the 2005 parliamentary elections the CEC made a decision on signing of fingers of voters with invisible ink and succeeded its organization in a short time. It is remarkable to include that issue in the Election Code which will serve for transparency of lections.
• Another amendment is Amendment 56. In the previous code (Article 105.2), the requests of voters for voting outside the voting room shall be verified by the Constituency Election Commission, at least 2 days before the voting day. Now this timeline was decreased to 12 hours which allows operativety and decrease of percent of absence of voters in elections.
• According to Amendment 62, the primary results are published as a generalizing schedule right after CoEC submit CEC the results, not two days later as was in the previous Electoral Code; the primary results are placed on internet page of the CEC. This amendment serves for delivery of the results of voting to public operatively and transparency of the process.
• There is a recommendation on additions and amendments to the articles on financing issues among the proposals of the Venice Commission. According to the last changes, that proposal has been adopted. The phrases of “Conditional finance unit” are replaced by new anta and expressed with concrete sums. Along it, the maximum limit of the election fund of candidates during the presidential and parliamentary elections were increased several times, having determined 10 mln anta for a candidate for Presidency, and 500, 000 manat a candidate for Milli Majlis membership.

As seen from the commentary of additions and amendments to the Election Code of the Azerbaijan Republic, most of the recommendations on improvement of the election legislation submitted by the Venice Commission of the Council of Europe to the government of Azerbaijan have been adopted.
After last additions and amendments to the Election Code were made in Milli Majlis of the Azerbaijan Republic, a report on Activity of the Democratic Institutions in Azerbaijan as well as the draft of Resolution 11627 were adopted with additions and amendments having been discussed in the summer session of the PACE. In the resolution the government of Azerbaijan is recommended the work below mentioned until the presidential elections:

1. Maintenance of balance while forming of the election commissions;
2. Improvement of the system of considering of complaints;
3. Allocation of free airtime for political parties and blocs on the stet-run TV channels;
4. Ensuring of the right of meeting of the oppositional parties.

The recommendations of the Venice Commission on improvement of the Election Code and the analyses of the last additions and amendments to the Election Code made by Milli Majlis prove that the government of Azerbaijan has to keep its activity in improvement of the election legislation.

The result

Having conducted comparative analyses and researches the reasons of not adopting of some proposals of JWG IIHRSA and the Venice Commission of the Council of Europe in the last additions and amendments to the Election Code made by Milli Majlis, with the purpose to help improvement of the Election Code

1. Formation of the election commissions

JWG IIHRSA considers important for wider explanation of the issue on formation of the election commissions which is the most disputable issue and which was not adopted out of the proposals of the Venice Commission.
The current format of the election commissions were determined by the Law of the Azerbaijan Republic on May 27, 2003 as a result of the negotiations between the Venice Commission and the government of Azerbaijan. According to that Law, the relevant articles on composition of the election commissions of the Election Code came into force in the first working day of the newly elected Milli Majlis of the Azerbaijan Republic in 2005.
OSCE ODIHR and the Venice Commission conducted negotiations and discussions, organized rounds table meetings with the government of Azerbaijan, the political parties, the NGOS and the representatives of the public. Despite all the efforts, the issue hasn’t been solved yet. The reason is that the interested parties could not find a common solution. The oppositional parties insist on formation of the commissions on the basis of parity. Taking into consideration the experience of 2000, the government of Azerbaijan thinks that the formation on the basis of parity may paralyze the activity of the commissions.
In general, there are different opinions and proposals on formation of the election commissions in the society. For example, a number of political parties propose formation of the commissions by the leading party and the parties represented in the parliament on the basis of parity. The NGOs offer formation of the election commissions by the representatives of NGOs. There is a proposal in the society on organization of the commissions of the people who don’t belong to any party.
JWG IIHRSA proposes formation of the election commissions (first of all, of the CEC) of professional lawyers, with election experience beyond any influence of any political partied in the country.
Note: The proposal on formation of the election commissions is reflected in the Package of Proposals of JWG IIHRSA .

2. Improvement of the system of considering of complaints

Among the recommendations of the Venice Commission. Even in the eve of the 2005 parliamentary elections, having taken the proposals of OSCE and the Venice Commission into account, the CEC adopted the special Direction on Rules of Considering of Complaints and Appeals appealed to Election Commissions related to violation of rights of election. According to the new amendment, the previous Article 112.5 of the Code was submitted in a new edition, and a new Article was 1121 included in the Code where the rules and procedure on considering of the complaints of citizens related to elections are reflected entirely. In that article it is implied to form relevant expert groups consisting of law educated 9 persons under the CEC and 3 persons under CoEC to consider complaints. It virtually means formation of a new structure in the field of considering of complaints.

3. Allocation of free airtime for political parties and blocs on the stet-run TV channels

The amendment on broadcasting of pre-election campaign by only public TV and radio organizations imply actually transformation of functions and authorities of AZTV related to pre-election campaign to ITV. The core of the issue doesn’t change. As the public TV and radio organization was established after the adoption of the previous Election Code, that amendment is made now. We can be sure of no problem in broadcasting during the election campaign, because the TV programs of the public TV are broadcasted in 85% of Azerbaijan, as well as the private TV channels such as, Khazar, ANS, Lider, and Space and ATV, and other private TV channels in the regions will take into the consideration the paid airtime of the candidates.

4. Ensuring of the right of meeting of the oppositional parties

During the recent years a work was conducted on agreement on additions and amendments to the Law on freedom to assemble adopted in 1998 between the government of Azerbaijan and international relations, including the Venice Commission. Finally, late 2007 the Venice Commission made its recommendations and admitted the draft. Afterwards additions and amendments to the Law on freedom to assemble were adopted in Milli Majlis on May 30, 2008. The last changes in the Law were positively evaluated by the international relations.
JWG IIHRSA considers that the current legislation ensures the right of people to assemble.