Observation Mission Report PARLIAMENTARY ELECTIONS OF THE REPUBLIC OF ARMENIA
HELD On 2 APRIL 2017
Prepared by the Non-Governmental Organisation EUROPE IN LAW ASSOCIATION In the framework of the CITIZEN OBSERVER INITIATIVE
Yerevan ● 2018 OBSERVATION MISSION REPORT PARLIAMENTARY E LECTIONS OF THE REPUBLIC OF ARMENIA
HELD ON 2 APRIL 2017
Prepared by the Non-Governmental Organisation EUROPE IN LAW ASSOCIATION In the framework of the CITIZEN OBSERVER INITIATIVE
YEREVAN ● 2018 Fund ed by the Europ ean Unio n
This publication has been produced with the assistance of the European Union. The contents of this publication are the sole responsibility of the Europe in Law Association NGO and can in no way be taken to reflect the views of the European Union. This Report was produced by the human rights organisation Europe in Law Association in the framework of the Citizen Observer Initiative following and on the basis of the observation mission carried out by Europe in Law Association, the Journalists’ Club ‘Asparez’ and Transparency International Anti-corruption Center.
The observation mission was carried out under the project ‘Public Oversight Over 2017 Parliamentary Elections’ funded by the European Union and co-funded by the National Endowment for Democracy, National Democratic Institute and the Embassy of the Kingdom of the Netherlands in Georgia.
The contents of this publication are the sole responsibility of the Europe in Law Association and can in no way be taken to reflect the views of the European Union, the National Endowment for Democracy, the National Democratic Institute and the Embassy of the Kingdom of the Netherlands in Georgia.
The Citizen Observer Initiative was founded in 2013 with a view to overseeing national and local elections and referenda in Armenia and their compliance with domestic law and the international standards of democracy. The website of the Citizen Observer Initiative is https://www.citizenobserver.am/
The website of the Europe in Law Association is http://ela.am
3 TABLE OF CONTENTS
LIST OF ACRONYMS...... 6 EXECUTIVE SUMMARY ...... 7 INTRODUCTION ...... 9
1. ELECTORAL LEGISLATION...... 11 1.1. The Process of Adoption of the New Electoral Code...... 11 1.2. The Main Innovations and Issues of the New Electoral Code...... 17
2. THE OBSERVATION MISSION...... 22 2.1. The Observation Missions and Observers ...... 22 2.2. The Goals of the Observation Mission...... 23 2.3. The Observation Mission and the Methodology Thereof ...... 24 2.4. The Results of the Observation...... 27 2.4.1. The Election Campaign. (the Problems and Violations Registered in the Period Preceding the E-Day) ...... 28 2.4.2. Preparation for Voting...... 33 2.4.3. The Voting...... 34 2.4.4. Summarisation of the Results of the Vote...... 39 2.4.5. Violations of General Nature...... 41 2.4.6. Violations of Observers’ Subjective Rights ...... 41 2.4.7. Problems/Violations Observed in the Aftermath of Voting ...... 42 2.4.8. Some Data Produced by the COI Analytical Team on the Basis of the Voter Lists ...... 44 2.4.9. Observation of TEC Activities...... 45
3. ELECTION-RELATED COMPLAINTS ...... 47 3.1. Brief Summary of the Process of Complaints...... 47 3.1.1. On the Legal Standing of the Observation Organisations and Observers...... 48 3.1.2. On the Violations of Subjective Electoral Rights of Observers...... 49 3.1.3. The Delivery of Complaints to TECs and the Process of their Handover...... 50 3.1.4. Notices on TEC Sessions and Timelimits for Examining the Complaints...... 51 3.1.5. Sessions and Decisions of TECs on the Submitted Complaints...... 53 3.1.6. On Failure to Examine the Fact of Violations (or Parts Thereof) Raised by the Complaints by the Initiative of TECs...... 59
4 3.1.7. On the Obstacles to the Right to Appeal the TEC Decisions...... 60 3.1.8. The Participation and Interference of the CEC with the Activities of the PECs and TECs: Absence of Independence on the Part of TECs...... 61 3.1.9. On the Complaints Submitted to the CEC and Examination Thereof...... 62 3.1.10. On the Claims Submitted to the Administrative Court...... 66 3.1.11. On Protection of the Rights of the “Journalits’ Club “Asparez”” as a Media Outlet...... 66 3.1.12. On the Actions Taken by the Bodies in Charge of Criminal Prosecution/ The Law Enforcement...... 67 3.1.13. On the Application Submitted to the RA Constitutional Court...... 67 3.1.14. On the Electoral Disputes Initiated by the Organisations Participating in Elections Concerning the Elections and the Electoral Results...... 68 3.1.15. April 28, 2017 Decision of the Constitunional Court...... 70
4. CONCLUSION...... 72 4.1. Amendments to the Electoral Legislation and Practice, the Effectiveness Thereof...... 72 4.2. Merger of State Functions and Party Interests/ Use of the Administrative Resources to the Advantage of One Party...... 74 4.3. Violations of the Formation and Expression of the Free Will of Voters (Oversight over the Participation in and the Process of Voting)...... 74 4.4. On the Innovations Introduced with the Adoption of the New Electoral Code...... 78 4.5. On the Institute of Complaints...... 80 4.6. On the System of Electoral Commissions in Charge of Election Administration and the Role of the CEC...... 81 4.7. The Observation Missions...... 81
5. RECOMMENDATIONS...... 85 5.1. Ensuring Political Competition ...... 85 5.2. On Electoral Commissions and Election Administration ...... 86 5.3. Accurate Voter Lists ...... 86 5.4. Broader Rights for Observers ...... 87 5.5. Ensuring Effectiveness of Complaints Proccesses...... 87 5.6. General Measures...... 88
5 LIST OF ACRONYMS
ANC Armenian National Congress APP Armenian Peoples’ Party ARF Armenian Revolutionary Federation CC Constitutional Court CEC Central Electoral Commission COI Citizen Observer Initiative EC Electoral Code ELA Europe in Law Association NGO HRD Human Rights Defender JCA Journalists’ Club ‘Asparez’ NGO NA National Assembly NGO Non-Governmental Organisation ODIHR Office for Democratic Institutions and Human Rights OSCE Organisation for Security and Co-operation in Europe PAP Prosperous Armenia Party PEC Precinct Electoral Commission RA Republic of Armenia RLP Rule of Law Party RPA Republican Party of Armenia TEC Territorial Electoral Commission TIAC Transparency International Anti-corruption Center NGO
6 EXECUTIVE SUMMARY
On 2 April 2017, parliamentary elections were held in Armenia. The territory of the State was divided into 13 constituencies, which, in their turn, were divided into territories apportioned to 38 territorial electoral commissions (hereinafter: TECs) where 2009 polling stations were formed. Four parties and five party alliances stood for elections. In total, the overall number of the proxies representing the parties and party alliances that stood for elections was 22.416. 49 non-governmental organisations monitored the elections with an overall number of observers reaching 28.021. The results of elections were disputed by one party alliance – ANC-APP. On 28.04.2017 the decision of the RA Constitutional Court (hereinafter also: the CC) was pronounced, which along with declaring the results of elections valid, also registered several important findings in the area of ensuring the Armenian citizens’ electoral rights and the development of the electoral system.
Three non-governmental organisations monitored the elections to the National Assembly (hereinafter also: the NA) of the Republic of Armenia in the framework of the Citizen Observer Initiative (hereinafter: the COI): Europe in Law Association NGO, Journalists’ Club ‘Asparez’ and Transparency International Anti-corruption Center. The aim of the COI is to monitor the national and local elections in Armenia and their compliance with domestic law and international standards of democracy.
The COI attracted 10 non-governmental organisations and 2972 individuals – both Armenian nationals and people from the Armenian diaspora – interested in having elections in line with international democratic standards in the process of oversight over the NA elections.
The COI conducted observation in all the 13 constituencies of Armenia (4 in the capital Yerevan and 9 in the regions of Armenia). The observation mission covered all the 38 TECs and 1522 polling stations located in the territory of 37 TECs (about 76% of all polling stations).
In the course of the observation mission observers submitted 1718 reports concerning electoral violations, of which 228 related to the preparation to voting, 919 –the process of voting, and 147 – the summary of the results of the vote. There were also 425 reports of violations of general nature.
7 Only 718 of these observations were registered in PEC logs. These violations comprised both repeat and continuing violations.
In total, 309 complaints were submitted to 37 TECs on the violations of observers’ subjective and general (objective) electoral rights registered by the COI observers and organisations. 127 appeals were then submitted to the Central Electoral Commission (hereinafter also: the CEC) and 96 complaints were submitted to the RA Administrative Court. An application contesting the election results was also submitted to the RA Constitutional Court. No complaints were submitted to TEC no 61:
The nature of the above violations, their interdependence and logic demonstrate that they are of a systemic and widespread/universal nature, while the response to them or, to be more correct, absence of any effective remedy in their regard by the bodies in charge of election administration – the electoral commissions, the law enforcement bodies and the judiciary - demonstrate that these state institutions are either incapable or unwilling to perform the functions conferred on them by law, which amounts to lack of independence.
The observation mission revealed systemic problems and violations in the electoral process, which have an essential impact on the exercise and the protection of the right to free and fair elections. These problems include but are not limited to ensuring free formation and expression of the voters’ will, ensuring the secrecy of the vote, use (abuse) of administrative resources, efficiency of the system of electoral commissions that are in charge of election administration, their accessibility, the institutes and safeguards of public oversight, as well as issues related to ineffectiveness of the mechanism of electoral disputes. In addition to this, a number of problems were revealed in the area of electoral legislation and law enforcement practice.
Theses problems are a serious obstacle to enforcing Article 2 of the RA Constitution, exercising the right to free elections and safeguarding the principles enshrined in Article 7 of the RA Constitution, undermining the free exercise of the people’s power by means of the 2017 parliamentary elections and giving rise, as a direct consequence, to widespread mistrust in elections and the electoral system.
1 Օbservation in the polling stations included in the district of TEC 6 was carried out by the Helsinki Committee of Armenia, and the results of monitoring of EC 6 were also posted on the website of the Citizen Observer Initiative.
8 INTRODUCTION
The elections to the NA held on 2 April 2017 were an event of a major significance for the State given the fact that they were the first national elections after the adoption of the constitutional amendments in 2015, as a result of which the system of governance was changed from a semi- presidential into a parliamentary Republic. The legal basis of the elections was the new Electoral Code (hereinafter: also the EC) and the procedures set up by the latter. A number of technological innovations in the area of voter registration were introduced by the Armenian government. The amendments to the Electoral Code passed on 20.10.2016 set forth the requirement of making the signed voter lists publicly available.
This report offers a factual, impartial and independent perspective in the assessment of the processes of the elections to the NA, reflecting the main findings of the observation mission, as well as the violations and problems observed and registered in the process of elections. On this basis the report then presents ELA’s conclusions and recommendations on the elections to the NA, which may act as a basis for rectifying the shortcomings of electoral law and practice and for overcoming the detected problems.
The target audience of the report includes:
● Citizens enjoying the right to vote: ▪ The general public, which essentially is both the main ‘commissioner’ and ‘beneficiary’ of any election observation mission; ▪ The public and political actors interested in the improvement of the electoral system of Armenia and intending to play an active part in the development of the relevant legal framework and application thereof.
● The State institutions: ▪ The institutions in charge of election administration, which are responsible for and play an important role in the due organisation of the electoral process and safeguarding of the electoral rights, as well as for carrying out an effective examination of the facts of electoral violations and, as a direct consequence, for raising public trust in electoral processes; ▪ The legislature and the executive, i.e. the NA and the Cabinet;
9 ▪ The bodies in charge of criminal prosecution, which by the powers conferred on them by the RA Constitution and legislation, are in charge of prevention, detection, effective examination of electoral violations, as well as ensuring inevitability of punishment for electoral offences; ▪ T he judiciary, which is in charge of the administration of justice in conformity with the Constitution and laws. ▪ T he international organisations, which support the advancement of democratic processes and human rights protection and need to have a comprehensive picture of the Armenian electoral processes, as well as the possible directions of improvement thereof.
The report comprises the following main sections:
● The section Electoral Legislation is a brief chronicle of the legislative amendments preceding the holding of the NA elections in three main subsections: the problems related to the system of parliamentary elections set forth by the Constitution, the process of adoption of the main document regulating the electoral process – the Electoral Code – and the related legal acts, as well as the brief outline of the main amendments to the legal acts regulating the electoral processes; ● The section Description of the Observation Mission details out the observation mission, including its goals, composition and methodology, as well as the obstacles lying in the way to the organisation thereof; ● The section Findings of the Observation Mission sets forth the electoral violations grouped according to their categories and subcategories, as well as the process of election-related complaints; ● The section Conclusions summarizes the general picture of the electoral process and provides an assessment thereof; ● The section Recommendations offers an outline of the priority issues essential for the fulfilment of the right to free and fair elections in the Republic of Armenia as well as the possible steps for the solution thereof.
10 1. THE ELECTORAL LEGISLATION
1.1. The Process of Adoption of the New Electoral Code
The constitutional amendments adopted on 6 December 2015 foresaw the adoption of a new Electoral Code until 1 June 2016 regulating the details of the new electoral system.
The Presidential Decree no PD-170-A dated 10 February 2016 and entitled “On the Organisation of the Legal Aspects of the Constitutional Amendments”2 defined the list of laws to be harmonised with the new Constitution, the deadlines and the list of bodies in cհarge.
In line with the above Decree, the bodies in charge of drafting and submission of the RA Electoral Code were the RA Ministry of Justice and the Central Electoral Commission, while the deadline for the submission of the draft to the NA was 1 March 2016, i.e. 18 days after the formation of the professional advisory council in charge of the legal aspects of the constitutional amendments. The draft law was not submitted to the NA within the set timeline and neither was it published on the website of the responsible state institutions. Contrary to the recommendations of the OSCE/ODIHR3, the draft was developed in a non-participatory manner by the relevant working group, without broad public awareness campaign and consultations. It was made available to the public in the framework of the agenda of the 3 March 2016 session of the RA Government4 in breach of the procedures prescribed by the RA legislation5, almost two weeks after its
2 RA Presidential decree PD-170-A dated February 10, 2016 “On the organisation of the legal aspects of the constitutional amendments: http://www.president.am/hy/decrees/ item/2566/ 3 Final report of the OSCE/ODIHR referendum expert team on December 6, 2015 Constitutional Referendum held in the Republic of Armenia: http://www.osce.org/odihr/ elections/220656?download=true 4 Government session agenda of March 3, 2016: https://www.e-gov.am/sessions/ archive/2016/03/03/ 5 Statement of the Transparency International Anti-corruption Center (TIAC) on the illegality of the development process of the draft Electoral Code of Armenia: https://transparency. am/en/news/view/1318
11 English version had been posted on the website of the Venice Commission.6 The period between its publication and adoption by the NA was extremely short and the civil society organisations had limited opportunity to express their concerns and recommendations on the draft.
On 29 February 2016 a number of civil society organisations took part in a consultation on the Electoral Code7, in the framework of which the priority issues of the electoral legislation were identified.8 In the course of this consultation it was agreed by a consensus to jointly formulate the priorities and to consistently implement them.
On 19 March 2016, the Citizen Observer Initiative published a statement expressing concern over the limitations on the rights of domestic observers and mass media representatives prescribed by the draft RA Electoral Code.9
The public consultations on the electoral legislation were limited to an event organised by the OSCE10, the participants of which were given an opportunity for a 5-minute presentation each, and the public hearings held by the NA on 22 March 201611, the participants of which were given an opportunity for a 5-minute presentation and presented the priority issues.12
6 The English version of the draft Electoral Code of Armenia published on the website of the Venice Commission on February 22, 2016: http://www.venice.coe.int/webforms/ documents/default.aspx?pdffile=CDL-REF(2016)018-e 7 https://www.youtube.com/watch?v=zLu6icGrIhw 8 http://www.civilnet.am/news/2016/02/15/armenia-new-electoral-code/286943 9 The Statement of the “Citizen Observer” Initiative published on March 19, 2016: https://citizenobserver.am/en/news/view/statement-on-local-observers-and-mass-media- representatives-activity-limitations-in-draft-elector2016-03-19-10-11 10 The OSCE Office in Yerevan supports public discussion on draft Electoral Code: http:// www.osce.org/yerevan/228376 11 Public hearings were held at the National Assembly on March 22, 2016, during which Lousineh Hakobyan and Tigran Yegoryan, the representatives of ELA spoke about the necessity to publicize the signed voter lists as a first step of crucial importance in the process of improving the electoral system and electoral processes and the public confidence towards these processes. https://www.youtube.com/watch?v=f1QTsRB1K6w&t=2s; https:// www.youtube.com/watch?v=kPQ34shWYWw 12 https://www.youtube.com/watch?v=usZncLw1b2o Levon Barseghyan- /6:05:43-6:11:00/ talks about the signed voter lists, cameras, peculiarities of elections in Gyumri and Vanadzor/. Heriqnaz Tigranyan- /6:11:10-6:16:35 /- speaks about sending the draft to the NA with procedural violations, as well as about the restrictions of the rights of observers/. Daniel Ioannisyan- /5:17:12-5:23:03/ speaks about the signed voter lists, territorial lists of parties/.
12 The above events were very far from the format of consultations and were ineffective and insufficient to be considered as pubic consultations on such essential legislative amendments. The other format of public consultations was the so-called “4+4+4” format in the framework of which a number of specific issues were discussed 13 by the ruling parliamentary faction, some opposition factions and civil society representatives (elected by an impressive number of non-governmental organisations) 14, which did not yield any results given the fact that the agreed amendments were not enacted.15 Following this, on 25 May 2016 the civil society representatives who participated in the ‘4+4+4’ consultations, made a statement on the recommendations prescribed by the agreement between the ruling and non- ruling parties on the organisational-technical mechanisms for overseeing the electoral process in the new Electoral Code.16 The authors of the statement deemed the piecemeal and controversial approach to individual components of the electoral system (legislation and process) unhelpful in raising trust towards the elections, demanding immediate removal of the restrictions on the rights of observers and media representatives and duly implementing the OSCE/ODIHR recommendations17 by, inter alia, eliminating the observer tests, enabling observation missions to contest the violations of general (objective) electoral rights and prescribing more comprehensive safeguards and effective means for all interested parties in challenging the results of the vote.
The authors of the draft oftentimes evaded the discussions held by civil soceity. As a result, despite the fact that non-governmental organisations and field experts were critical of the draft and made very concrete recommendations on its improvement, they were not reflected in the Electoral Code adopted
13 Initial joint demands concerning the Electoral Code: https://citizenobserver.am/en/news/ view/primary-joint-demands-related-to-the-electoral-code2016-03-22-10-20 14 Statement on participation in the process of improvement of the draft Electoral Code: https://citizenobserver.am/en/news/view/statement-on-engagement-in-the-work-for- improvement-of-the-draft-electoral-code-of-armenia2016-03-24-10-23 15 Changes agreed within the framework of “4 + 4 + 4” format will not be taken into consideration during the upcoming national elections: https://www.azatutyun. am/a/27952602.html. The extraordinary meeting of the CEC concerning the entry into force of the Law on Making Amendments and Changes to the Electoral Code of June 30, 2007 (HO-120-N). 16 https://citizenobserver.am/en/news/view/statement-on-organisational-technical- mechanisms-of-the-control-over-the-legitimacy-of-electoral-pro2016-06-16-10-45 17 http://www.osce.org/odihr/elections/armenia/246566?download=true
13 on 25 May 2016. In this regard, the organisations members of the COI made several statements.18
The new Electoral Code was adopted on 25 May 2016 along with amendments to a number of related laws (RA Criminal Code, RA Code of Administrative Violations, RA Administrative Procedure Code, etc.).
The State continued consultations with political forces, international and diplomatic structures, benefiting in this process from the expertise of civil society organisations, concentrating in particular on the organisational and technical aspects of the oversight over the legality of the voting process in anticipation of foreign and international financial assistance.19
In these processes various civil society representatives, including the COI made statements.20
On 13 September, a working session for the purpose of signing the final document on the organisation and holding of the electoral processes in the Republic of Armenia took place in the National Assembly21, in the course of which the representatives of the parliamentary factions RPA, PAP, ANC, RoL and ARF signed a joint statement.22
18 Opinion on compliance of the provisions of the draft Electoral Code of the Republic of Armenia with international standards: https://citizenobserver.am/en/news/view/ opinion-on-the-compliance-of-the-provisions-of-draft-electoral-code-of-the-republic- of-armenia-with-2016-05-10-10-36 . Statement on the limitation on the activities of local observers and mass media representatives foreseen in the draft Electoral Code, May 31, 2016: https://citizenobserver.am/en/news/view/statement-on-local-observers- and-mass-media-representatives-activity-limitations-in-draft-elector2016-03-19-10-11. Statement on organisational-technical mechanisms of the control over the legitimacy of electoral process in the new Electoral Code, June 23, 2017: https://citizenobserver.am/ en/news/view/statement-on-organisational-technical-mechanisms-of-the-control-over- the-legitimacy-of-electoral-pro2016-06-16-10-45 19 http://www.parliament.am/news.php?cat_ id=2&NewsID=8538&year=2016&month=06&day=16&lang=eng, http://www.ela.am/ index.php?route=news/article&news_id=135 20 Statement on organisational-technical mechanisms of the new Electoral Code: https:// citizenobserver.am/en/news/view/statement-on-organisational-technical-mechanisms-of- the-control-over-the-legitimacy-of-electoral-pro2016-06-16-10-45 21 The authorities presented the process within the framework of “4+4+4”, however its format was quite different. 22 The participants of “4+4+4” format signed a statement: http://www.parliament.am/news. php?cat_id=2&NewsID=8657&year=2016&month=09&day=13&lang=eng
14 In line with the agreement obtained as a result of the above process, amendments were made to the RA Electoral Code and the RA Criminal Code on 20 October 2016. The agreement of the political forces concerned videorecording and livestreaming in the polling stations on the E-Day, making the signed voter lists publicly available, as well as other issues.23 At the same time, amendments were made in the RA Criminal Code and stricter punishments were foreseen for electoral offences. In addition to this, a new criminal offence was introduced (Article 154.8 of the RA Criminal Code), which criminalised making a false statement on voter impersonation or enclosing a statement with a forged signature to the report, which raised formidable public criticism by various civil society organisations, including professional circles.24
The above agreement also foresaw a trilateral commission composed of representatives of the ruling and non-ruling parties, as well as civil society organisations. The Government adopted a decree on the joint commission.25 However, civil society organisations refused to take part in the work of the commission.26 The aforesaid amendments were stipulated by the RA Law on Amending the RA Electoral Code dated 20 October 2016.
The civil society organisations issued a statement stressing that the legislative amendments are an essential but not sufficient condition for organising free and fair elections and fulfilling the right to vote in line with the RA Constitution and international standards, especially considering the shortcomings of the Electoral Code, including in the area of election financing, protection of the right to vote (effectiveness of the right to complaint and the relevant procedures), as well as those in the area of the regulations and limitations of the rights of observation missions and media representatives.2728
23 http://www.a1plus.am/1485857.html 24 Statement of the NGOs on making amendments and changes to the RA Criminal Code introduced by the Armenian Government: October 22, 2016: https://transparency.am/ en/statements/view/215, http://www.ela.am/index.php?route=news/article&news_id=113 25 https://www.e-gov.am/gov-decrees/item/27883/ ,Annex: https://www.e-gov.am/u_files/ file/decrees/kar/16_1158.pdf 26 https://citizenobserver.am/en/news/view/statement-on-rejection-to-enter-the-joint- commission-for-technical-provision-of-the-voting-process2016-12-12-11-12 27 Statement of the NGOs on the Electoral Code of Armenia and the recent developments related to it; September 9, 2016: https://citizenobserver.am/en/news/view/statement- on-the-electoral-code-of-armenia-and-the-recent-developments-related-to- it2017-09-09-10-49 28 The joint Statement of the NGOs; September 12, 2016: https://citizenobserver.am/en/ news/view/joint-statement-of-ngos2016-09-12-10-53
15 One of the essential assignments of the Commission, which was the audit of the database of voter ID cards and passports, was never fulfilled29, while this was truly essential for ensuring public trust in the newly introduced VAD equipment. As regards the installation of videocameras, although it was foreseen that all polling stations would be equipped with cameras, they were installed in 1500 polling stations only. Apart from this, it was decided not to make audiorecordings or audiostreaming in polling stations, a decision, which was never convincingly justified. The non-availability of the videomaterials was also an issue reducing considerably the effectiveness of this tool, as well as public trust in electoral processes. The livestreaming was stopped after the summary of the results of the vote and the footage was not made available to the public. The fact that they were made available to the parties, which were entitled to this by law, was not a sufficient safeguard either.30 Considering the international best practices (where there is a possibility of videorecording the electoral process), it is of utmost importance to analyze the relevant footage with a view to further improving the electoral process. On 6 October 2016, a number of civil society organisations expressed serious concerns on the reappointment of the same CEC members in the light of the need to increase public trust in the reform of the electoral system and the legality of the forthcoming elections, emphasizing the need for more profound amendments, including election of new members to the CEC who will be independent and able to administer lawful and trustworthy elections, due protection of the right to vote and will not be tarnished with reasonable doubts regarding their role in the commission of electoral fraud in the past.31 In this regard, criticism was subsequently expressed also by Ambassador Piotr Antoni Switalski, Head of the EU Delegation in Armenia.32
29 http://hayastan24.com/?p=14518&l=am 30 The service provider requires a storage medium with at least 120 TB memory (however, ELA’s calculations demonstrate that the volume of recorded footage in 1500 polling stations is about 10-16 TB) and AMD 372,000 for the provision of the footage of the voting and summarisation procedures from 1500 polling stations. In order to provide 120 TB of storage capacity, 12 storage media with 10 TB of memory are needed, each costing approximately $ 600 – AMD 288,000 (the most affordable price in the market). To obtain a backup copy of the footage AMD 3.828.000 (3.456.000 + 372.000) is needed, according to the service provider’s requirement. This is a serious obstacle for NGOs to obtain the footage, which makes the analysis of this footage impossible. 31 https://citizenobserver.am/en/news/view/statement-on-the-formation-of-the-central- electoral-commission2016-10-07-10-58 32 https://www.azatutyun.am/a/28554999.html
16 The COI held a conference on the new Electoral Code and its amendments on 11 Novenber 201633, and invitations were sent to NA members, representatives of state institutions (CEC, CC, Government, HRD), civil society representatives and field experts.34
1.2. The Main Innovations and Issues of the Electoral Code
The main amendments to the new Electoral Code (and the related laws) are: ՝
• Introduction of the system of ‘stable majority’ and the related regulations on the second round of elections and the bonus system; • Introduction of territorial electoral lists (rating lists) in the framework of the proportional system; • Limited possibilities for political forces to make a coaltion (to be formed by not more than 3 parties or party alliances); • Amendment (lifting) of the restrictions for politicians and some public servants to take part in the electoral campaign; • Elimination of the testing requirement for observers and simplified accreditation procedures; • Restrictions of the rights of observers and media representatives; • Publication of the signed voter lists; • Videorecording and livestreaming from polling stations; • Introduction of the voter authentication devices; • Extending the deadlines for submitting complaints to electoral commissions; • Deliberate encumberment of electoral complaints procedures, the formal requirements foreseen for the complaints, as well as the manner of submission of the complaints, the restriction of the possibility of readdressing the complaints, the restrictions in the area of institution
33 http://yerevan.today/all/politics/10399/yntrakan-nor-orensgrqi-vichaharuyc-normery- pordzagetneri-meknabanmamb 34 http://yerevan.today/all/politics/10399/yntrakan-nor-orensgrqi-vichaharuyc-normery- pordzagetneri-meknabanmamb
17 of administrative proceedings, appointment of hearings and the pronouncement of decisions, elimination of the obligation of TECs to notify of TEC sessions and decisions, the issue of these decisions becoming effective and their accessibility to the interested parties, which compromises significantly the system of effective remedies for such violations; • Restrictions in the area of the right to seek for judicial redress and the relevant timeframes (the right to access to court).
In addition to the Electoral Code, the Criminal Code foresaw stricter liability for electoral violations, including supplementary liability. An incentive was foreseen by the article setting out liability for votebuying.35
The amount of the electoral deposit was also increased along with the maximum permissible ceilings of the electoral funds.36 The maximum permissible investments in the electoral funds of parties and party alliances by physical persons was set at 500 times the minimum salary, while the maximum ceiling of expenditures made with a view to financing any electoral campaign costs was set at up to 500,000 times the minimum salary (the above ceilings are set at five times the ceilings prescribed by Electoral Code adopted in 2011).
Nevertheless, the new Electoral Code preserved serious problems and despite the fact that non-governmental organisations, the professional community and the opposition parties continued to voice these concerns along with offering solutions, they did not receive adequate response from the authors of the draft and the legislature. The voiced problems inluded:
• Absence of effective mechanisms foreseen by the Electoral Code against any form of use (abuse) of the administrative resources in the pre- election period; • The fact of publicizing the signed voter lists without a search engine, which required extensive resources for the effective analysis of these
35 The recipient of the electoral bribe is exempted from criminal liability if he / she voluntarily informs about the crime committed before the law-enforcement bodies ( but not later than three days) and assists in the detection of the offense (Article 154.2 of the Criminal Code of the Republic of Armenia). 36 Electoral Code of Armenia, Article 92
18 lists and detection of violations rendering their timely and effective use almost impossible; • Absence of the possibility to compare the voter lists with the population register and lack of their interoperability; • Absence of the possibility to check the electronic voter lists printed by VADs and the data input during the process of voting; • Foreseeing a possibility to sign in the column ‘Other Notes’ in case of detecting a signature in front of the voter’s name in the voter list in the Electoral Code and absence of the legislative requirement to undertake any action in this regard (registration, recording in the commission log, examination of such cases); • Lack of access to the footage after the E-day (they may be made available for a limited time and at a very expensive cost); • The new system of ‘stable majority’, according to which the party or party alliance having obtained the maximum number of votes, receives 54% of the seats in the parliament, if necessary, also through a bonus system, which is a serious problem in terms of political competition; • The mechanism of nomination of the national minorities and the distribution of mandates, which creates a possibility for receiving additional mandates; • The possibility of creating a coaltion for a limited number of political forces: it may include not more than 3 parties or party alliances. If it is impossible to form a majority, the two parties or party alliances having obtained the majority of votes, participate in the second round of elections; • The introduction of the territorial electoral lists in the framework of the proportional system (the rating lists), which stimulated considerably the vicious practice of abuse of the administrative and financial resources and excluded essentially political competition and, as a result, compromised the political purpose of the proportionate system; • Secrecy of the polling stations, where voters included in the voter lists of military units voted and these lists, which limited considerably the public oversight over voting by the military;37 • Restrictions of the right to hold an observation mission by foreseeing
37 According to the previous Electoral Code of 2011 only the lists of soldiers/military servants were confidential.
19 the requirement of having the goal of contributing to the consolidation of democracy and human rights protection in organisational statutes for at least a year preceding the decision on appointing elections; • The restrictions of the rights of the mass media applying for accreditation in the CEC by foreseeing a requirement for issuing publications for at least a year prior to the adoption of the decision on holding elections; limiting the number of media representatives to 50 for one media entity in the case of 2009 polling stations formed for elections to the NA, creating unequal and privileged conditions for the media engaged in overground broadcasting; • The possibility for PECs to limit the number of observers or media representatives that are present in the voting room at the same time (but not less than 15 observers or media representatives) by the vote of the 2/3 of the PEC members, which, however, does not apply to visitors, international observers and representatives of television and radio companies engaged in overground broadcasting, which is essentially a discrimination; • The right of the PEC members to remove an observer, a proxy or a media representative from the commission hearing or the voting room (on the E-day) by the 2/3 of its members; • An extremely narrow scope of the parties having a right to contest the results of the vote or elections, contrary to the OSCE/ODIHR recommendations, the observation organisations were not given the right to contest the results of the vote or elections;38՝ ։ • Time limitations introduced for admitting complaints: until 22.00 on the E-day, 12.00-18.00 on the day following the E-day and 09.00-11.00 on the second day following the E-day. In addition to this, a number of other limitations were introduced, including the requirement to submit the complaints and original POAs and copies of observer badges enclosed with them prior to the set deadline; • Removal of the obligation to issue a due and timely notice of hearings of electoral commissions and decisions adopted by them, as well as the issue of accessibility of the adopted decisions;
38 Janurary 18, 2016 joint opinion of the Venice C omission and OSCE/ODIHR on the draft Electoral Code of the Republic of Armenia: http://www.osce.org/odihr/elections/ armenia/246566?download=true
20 • Impossibility to submit complaints to the CEC on non-working days; • The issue of ensuring the uniformity of election administration (exclusion of double standards); • Absence of real and effective public oversight over the electoral commissions at all levels; • Discriminatory regulations related to the exercise of these rights by citizens residing outside the Republic of Armenia.39
In addition to the above problems of the Electoral Code, the RA Criminal Code foresaw liability for making a false statement on the fact of voter impersonation or enclosing a statement with a forged signature to this statement committed either intentionally or negligently. In the latter case a fine in the amount of 200 000 – 800 000 AMD or imprisonment for up to 2 years was foreseen (Article 154.8 of the RA Criminal Code). This liability restricts the possibility for making reports on this type of electoral fraud detected as a result of publicizing the signed voter lists eliminating essentially the positive impact of the publication of the signed voter lists from the perspective of public oversight.
39 Only citizens being abroad on diplomatic and consular missions and their family members, servants being abroad for long-term service or training, as well as members of foreign representative offices of legal entities registered in the Republic of Armenia and their family members residing abroad have the right to vote; they can vote electronically.
21 2. THE OBSERVATION MISSION
2.1. The Observation Missions and Observers
● The International Observation Missions.
650 observers from 6 international organisations (OSCE Parliamentary Assembly, Parliamentary Assembly of the Council of Europe, European Parliament, OSCE/ODIHR Elections Observation Mission (EOM) Short-term Observers, OSCE/ODIHR Observation Mission (EOM) Core Team, OSCE/ ODIHR Observation Mission (EOM) long-term Observers) were accredited in the manner prescribed by the RA Electoral Code and monitored the preparation, holding and summarisation of the elections to the NA.
Requests for monitoring the elections to the NA were made to the RA Central Electoral Commission and the RA Ministry of Foreign Affairs inter alia by the European Platform for Democratic Elections (EPDE) and the European Network for Election Monitoring Organisations (ENEMO). However, the Central Electoral Commission refused to invite them on the pretext that the number of the accredited observers was too high.40
● Domestic Observation Missions.
The number of accredited observers for the elections to the NA on 2 April 2017 was 28021 and they represented 49 organisations.
Although the above numbers are impressive at first sight, the reality is slightly different. In particular, the section on the violations observed indicates cases when observers representing different observation missions manifested conduct which was in breach of the requirements of impartiality and neutrality. There was low level of public trust in observation organisations and their
40 EPDE condemns the Armenian Government’s refusal to invite international citizen election observers; March 2017: http://hcav.am/events/22-03-2017-03-en/, ENEMO Concerned over Armenian CEC’s Decision to Reject Invitation for Election Observation, March 2017, http://www.enemo.eu/en/news/236-enemo-concerned-over-armenian-cecs-decision-to, The Explanation of the CEC, March 2017; http://www.elections.am/news/id-427/
22 observers from the very beginning. This, however, became even worse when their true mission was revealed both thanks to the efforts of real observers and the interview41 of Hovhannes Hovsepyan,42 by which he unveiled the true mission of these observation missions and their observers, their chain of command, the total control over elections by means of this chain and the fact that they reported unconditionally to the RA President Serzh Sargsyan.
The issue of effectiveness of observation missions and observers and proxies was also touched upon by the RA Constitutional Court in its decision dated 28.04.201743 (DCC-13642, paragraphs 11, 12) stressing, in particular, the role of the Citizen Observer Initiative.
2.2. The Goals of the COI Observation Mission
The COI held an observation mission during the elections to the NA appointed on 2 April 2017. The goal of the COI observation mission was to monitor the legality of the elections to the NA, including by:
41 http://armlur.am/681377/ 42 1996-2002 – worked in the legal department of the RA Presidential Administration as a first-class specialist, leading specialist; in the state-legal department as a chief specialist, consultant. • 2002-2006 – Head of the HR department of the office to the RA President. • 2003-2004 – lecturer at the RA Academy of Public Administration • March 2006 - February 2007 – President of the “Alliance” consulting center • February- December 2007 - Advisor to the RA Minister of Territorial Administration • On December 22, 2007 was appointed deputy minister of Territorial Administration. • On May 26, 2008 he was dismissed from the position of Deputy Minister of Territorial Administration of the Republic of Armenia on the basis of the decision of the RA Prime Minister. • On May 26, 2008 was appointed Head of the Control Service of the President of the Republic of Armenia according to the decree of the RA President. • On March 3, 2016 was dismissed from the position of the Head of the Control Service of the President of the Republic of Armenia by the decree of the RA President. • On March 3, 2016 was appointed Chairman of the State Revenue Committee by the RA President’s decree. • Head of the Control Service of the President of the Republic of Armenia since May 23, 2017. 43 http://www.concourt.am/armenian/decisions/common/2017/pdf/sdv-1364.pdf (SDO- 1364, paragrapf 12)
23 ● detecting electoral violations committed in the process of elections connected with the exercise, fulfillment and protection of this right and making them public; ● initiating actio popularis in order to make the authorities carry out an effective examination of these violations; ● engaging in the protection of subjective and objective electoral rights on the facts of election-related violations by initiating a process of complaints to the bodies in charge of election administration and the judiciary and, if necessary, making reports to the law enforcement bodies; ● developing an informed, independent and impartial perspective on the electoral process, the exercise of electoral rights and effectiveness of the protection thereof; ● Analysing the problems of the electoral process in terms of legislation and practice with a view to submitting recommendations on the improvement of the legislative framework; ● Assessing the compliance of elections with domestic legislation and the relevant international standards.
2.3. The Observation Mission and the Methodology Thereof
The COI developed and published a handbook on parliamentary elections44, a guideline45 a code of conduct for observers46, as well as videocourses and videoclips on electoral legislation.47 The COI also held around 160 trainings in all the regions of Armenia and trained around 4000 people. The trainings were delivered by lawyers specifically trained in election law in two stages and focused on the electoral legislation, the electoral processes, the rights and obligations of observers and other electoral stakeholders. The second round of trainings was of a more practical nature, in the course of which the types of electoral violations along with case studies and problem solving, as well as the code of conduct and other issues related to observers’ functions were discussed.
44 Manual for proxies, observers and media representatives: https://citizenobserver.am/ viewGuide?file_name=book%20dzernark%202017%20aj%20small.pdf 45 Guidelines for observers: https://citizenobserver.am/viewGuide?file_name=%D5%B8%D 6%82%D5%B2%D5%A5%D6%81%D5%B8%D6%82%D5%B5%D6%81.pdf 46 Code of conduct for observers (included in the Guidelines for observers): https:// citizenobserver.am/viewGuide?file_name=%D5%B8%D6%82%D5%B2%D5%A5%D6%81% D5%B8%D6%82%D5%B5%D6%81.pdf 47 Video trainings for observers, media representatives and proxies: https://citizenobserver. am/hy/observers/videoTraining
24 The organisers recruited and trained the COI legal team composed of 36 lawyers who were providing legal advice throughout the observation mission. They also led the process of electoral complaints. The COI also had a team of analysts who analysed the data received with a view to detecting potential cases of electoral fraud and the risks thereof. Apart from that, the COI team of analysts did studies and research both in the period preceding voting as well as afterwards. The analysed information was received inter alia from the mass media, the materials of administrative proceedings, the TECs, the CEC, the courts, and the statements of the state institutions submitted to the RA Constitutional Court. The COI involved 3010 observers, 1326 of them were accredited with the CEC on behalf of ELA, 1480 on behalf of TIAC and 204 on behalf of JCA. Out of this number only 2972 participated in the mission on the E-Day. In addition to the core members of the COI the following non-governmental organisations took part in the mission:
1. ‘Khoran Ard’ NGO, Gyumri; 2. ‘Shirak Branch of the Armenian Human Rights Protection Center after A. D. Sakharov’, NGO, Gyumri; 3. ‘Center for Community Mobilization and Assistance’ NGO, Alaverdi; 4. ‘Soseh Women’s Issues’ NGO, Goris; 5. ‘Armavir Development Center’ NGO, Armavir; 6. ‘Community Artery’ YCC, Vardenik; 7. ‘Astghatsolk’ NGO, Tchambarak.
The COI included both Armenian nationals and 147 Diaspora Armenians living in 22 countries, as well as around 100 citizens of other states interested in consolidation of democracy. The observation mission was held in 1522 polling stations, which were located in the territories served by 37 TECs. The COI team also monitored the process in 38 TECs. In choosing the polling stations the COI took note of the number of registered voters and, therefore, the largest possible polling stations were chosen. The COI also had 38 teams of mobile observers who acted as rapid response teams to support the observers monitoring the polling stations. The table below reflects the number of monitored polling stations per region and constituency:
25 Number of Administrative District Constituency TEC monitored polling stations Yerevan 1-4 1-5, 7-10 342 Aragatsotn 7 17-18 100 Ararat 5 11-13 118 Armavir 6 14-16 116 Gegharkunik 8 19-21 136 Lori 9 22-25 190 Kotayk 10 26-29 116 Shirak 11 30-33 145 Syunik 12 34-35 129 Vayots Dzor 12 36 46 Tavoush 13 37-38 82 Total 1522
The COI observers monitored the polling stations in pairs as observers accredited from different organisations carrying out a mission in the framework of the COI. When observing violations of the electoral legislation, the observers demanded that their observations be registered in the PEC log. The observers sent sms reports on electoral violations and the PEC response to these violations (by means of a special application) to the COI Coordination Center. The reports texted by the observers (around 1718) were reflected in the COI online map of violations. Following this the coordination center operators made return calls to the reporting observers to verify the reports and, if necessary, took notes of the details of incidents. As a result, 1618 violations were verified from 624 polling stations.
The legal team then drafted complaints on the basis of these reports and filed them to the relevant electoral commission.
26 2.4. The Results of the Observation Mission
In what comes below, the authors present the violations and shortcomings detected by the COI observation mission by types of violations starting from the stage of preparation for voting to the stage of complaints. This report presents only the violations detected by the COI observers and analytical team, their general nature and statistics.
Merger of State Functions and Party Interests/ Use of the Administrative Resources for the Benefit of One Party
It was observed that the Republican Party of Armenia having at its disposal all state power used it to advance the party interests and goals. The Republican Party of Armenia has members in almost all the executive offices (starting from the President of the State) and the legislature (simple majority).
The merger of party and state functions was more obvious and larger in scope during these elections than ever before.
This was manifested in the fact that Edward Sharmazanov, RPA Speaker and Deputy Speaker of the National Assembly regularly declared in the period preceding the elections that the RPA would be the most influential party in the coming decade and that it was only through this channel that people could be appointed to a public office and be successful in politics.48
48 https://armenpress.am/arm/news/760338/apaga-tasnamyakum-hhk-n-linelu-e- hayastani-qaxaqakan.html http://www.azatutyun.am/a/26884985.html http://www.azatutyun.am/a/25387042.html
27 2.4.1. The Election Campaign49 (the Problems and Violations Registered in the Period Preceding the E-Day)
Use of the Administrative Resources Mostly in Favour of One Party
The involvement of public officials and the use of the state and community resources in the election campaign had a considerable influence on the formation and expression of the will of voters considering the fact that a number of high-ranking officials played a leading role in the election campaign, as well as the possibility of direct impact of public servants on very concrete voters and/or people connected with them. Nevertheless, this question was not properly examined and assessed by the bodies in charge of election administration, in particular the CEC.
According to the data in the public domain, the pre-election fund declared by the RPA was the biggest, reaching 400.000.000 AMD, which is almost three times more than that of the other parties’ (party alliances’).50
Involvement of High-Ranking Officials in the Election Campaign Mostly in Favour of the Republican Party of Armenia
The three high-ranking officials leading the RPA’s electoral list Vigen Sargsyan, the RA Minister of Defence, Arpine Hovhannisyan, the RA Minister of Justice, Taron Margaryan, the Mayor of Yerevan, as well as Karen Karapetyan, the RA Prime Minister (has recently joined the RPA)51 held an election campaign in the whole territory of Armenia.
Serzh Sargsyan, President of the Republic and the Chairman of the Republican Party of Armenia visited Artsakh, including a number of military units along with the RA and Artsakh ministers of defence and got familiarized with the military preparations of the armed forces. The relatives of the military also took part in the event. Following this, Serzh Sargsyan made a speech, which essentially was an election campaign in favour of the RPA and a campaign
49 Taking into account the new regulation of the electoral legislation, according to which pre-election campaign can also be carried out before the period prescribed by law, this section presents the cases of pre-election campaign involving high-ranking officials also before the official launch of the pre-election campaign. 50 http://res.elections.am/images/audit/02.04.17m.pdf 51 http://armlur.am/672328
28 against some of the election participants. This speech was widely covered by the media.5253
Vote-Buying: Mass Vote-Buying, Response of the Public Officials and the Law Enforcement to the Incidents of Vote-Buying
Various incidents of vote-buying, promise and/or attempts thereof were registered. There were in total 65 reports of vote-buying in the media concerning voters in around 189 polling stations (12 urban and 6 rural in 9 regions of Armenia) in around 28 constituencies of the State (1, 2, 3, 4, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 33, 34, 37, 38).
52 http://news.1tv.am/hy/2017/03/25/%D5%86%D5%A1%D5%AD%D5%A1%D5%A3%D5% A1%D5%B0-%D4%B1%D5%B9%D6%84-%D5%B9%D5%A5%D5%B6%D6%84-%D5%A 9%D5%A1%D6%80%D5%A9%D5%AB%D5%9D-%D5%B0%D5%A1%D6%80%D5%AF- %D5%A5%D5%B2%D5%A1%D5%AE-%D5%A4%D5%A5%D5%BA%D6%84%D5%B8%D6% 82%D5%B4/54594 http://www.president.am/hy/press-release/item/2017/03/25/President-Serzh-Sargsyan- awarded-Soldiers-in-Artsakh/ http://galatv.am/hy/your-voice/184763/ , https://zham.am/?p=6577&l=am , http://www.irates.am/hy/1490530576 , http://www.chi.am/index.cfm?objectid=A8EA05A0-1375-11E7-B75EDA96B1BA47AC , http://araratnews.am/serzh-sargsyaneh-koch-e-anum-chehntrel-nikol-phashinyanin/ , https://www.azatutyun.am/a/28390759.html, http://www.civilnet.am/news/2017/03/25/%D5%8D%D5%A5%D6%80%D5%AA- %D5%8D%D5%A1%D6%80%D5%A3%D5%BD%D5%B5%D5%A1%D5%B6%D5 %B6-%D5%A1%D5%BD%D5%A5%D5%AC-%D5%A7%D5%9D-%D5%B8%D6%8- 0%D5%BF%D5%A5%D5%B2-%D5%A7-%D5%BF%D5%A5%D5%BD%D5%B6%D5%B 8%D6%82%D5%B4-%D5%AB%D6%80%D5%A5%D5%B6-2018-%D5%AB%D6%81- %D5%B0%D5%A5%D5%BF%D5%B8/311324 53 Serge Sargsyan particularly said: “We must understand that April 2 is not a game, it is not a lie, tongue-twister competition, we must understand that on April 2 we do not elect good jumpers on the roofs, we elect those defending our people’s right to exist. We elect those who will give us commands to take arms, attack and retract if necessary. We elect those who have enough inner strength to do this. We choose those under whose command these guys will finish their service, under whose command the next generation will serve, who will protect our children’s right to carefree education and the sunset of our elders. Do we understand this is or not? We just have to understand this when approaching the ballot box. Any member of the society can be confident. We did not and will not spare any effort and means, and the opportunity to further strengthen our security, to add additional components to it. Together with efforts to ensure favorable external conditions for the development of our country, we will continue to modernize our Armed Forces, to increase combat readiness, and to equip us with the latest and adequate armament, in fact, the policy of no alternative.”
29 According to various sources (media publications, observations of participants of election campaign meetings and rallies), vote-buying was of a widespread and organised nature. According to some media publications, the size of the bribe, by the mutual agreement of the parties and party alliances engaged in vote-buying, reached 10 000 AMD.54
The conduct of public officials and the law enforcement bodies essentially encouraged vote-buying and created an air of impunity. In what follows below one can find the public statements of a number of high-ranking officials and politicians about vote-buying:
Hermineh Naghdalyan, NA Vice Speaker and RPA Member stated, in particular, no matter which party is engaged in vote-buying, this is charity, these people simply make donations, they just donate gifts without any hope for vote-buying and that there is not a single mechanism, not a single way in the Electoral Code after giving the bribe to check whether the one that took the bribe voted in their favour.55
It is noteworthy that while Hermine Naghdalyan, an RPA member speaks of a mechanism (oversight over voting), in case of application of which the electoral bribe or a promise thereof is effective and justified, she is at the same time trying to deny the existence of this mechanism.
Vladimir Gasparyan, Chief of Police declared that the electoral bribe is a phenomenon difficult to prove.56
Edward Sharmazanov, Deputy NA Speaker does not think that vote-buying had any serious impact on the elections. Relying on Vladimir Gasparyan’s statement, he further stated that it was very difficult to detect vote-buying to say nothing of assessing it on the election day.57
The fact that the information concerning widespread vote buying was
54 https://www.radioaurora.am/article/1489547969/yntrakasharqi-chapy-10000- dram.html , http://hraparak.am/?p=140397&l=am/ yntrakasharq+baganelu+harcum+xaxi+miasnakan+kanoner+en+sahmanel+ https://www.azatutyun.am/a/28407083.html 55 https://news.am/arm/news/381992.html 56 https://news.am/arm/news/374917.html 57 https://www.azatutyun.am/a/28412112.html
30 trustworthy, was corroborated by the statements of the aforementioned public officials and politicians, as well as the warning of the CEC related to election campaign violations committed by Gagik Tsarukyan at the top of the list of Tsarukyan Alliance. Gagik Tsarukyan issued a statement in response to this, stating that the promises he made would be delivered after 2 April.58 The CEC’s reaction to this was silence. The CEC rejected the complaint of ‘Yelq’ Alliance on applying to the court for annulling the registration of Arakel Movsisyan, RPA candidate on the grounds of giving a promise of bribe.
During the press conference convened on 3 April, Ignacio Sanchez Amor, the Special Co-ordinator of the OSCE/ODIHR Election Observation Mission stated that ‘Despite welcomed reforms of the legal framework and the introduction of new technologies to reduce electoral irregularities, the elections were tainted by credible information about vote-buying, and pressure on civil servants and employees of private companies... This contributed to an overall lack of public confidence and trust in the elections.’59
Actions Taken by School and Kindergarten Principals as Public Sector Employees in Favour of the Republican Party
As early as 2012 the Journalists’ Club ‘Asparez’ conducted a study among the principals of all public schools of general education in 20 largest towns of Armenia (in around 800 out of the 1500 schools of Armenia).60 It was revealed that 70% of the respondent school principals were members of the Republican Party, of which 50 % became RPA members in the course of the last 6 years.
During the election campaign for NA Elections of the VI convocation held on 2 April 2017, information was circulated in the press that public officials from the bodies of public administration and local self-government throughout the whole territory of Armenia force the employees of kindergartens and schools, as well as their family members, relatives and parents to vote in favour of the RPA. These actions were accompanied by collection of the
58 http://www.azatutyun.am/a/28360208.html, http://www.aravot.am/2017/03/13/865181/http://yerkirmedia.am/1political/carukyan- tigran-mukuchyan-nakhazgushacum/ 59 http://www.lragir.am/index/arm/0/country/view/150953 60 http://www.asparez.am/levon-barseghyan-politicized-educational-system-2/#. WPTLnfmGO01
31 personal (including passport) data of these parents, and compiling of the relevant lists. A number of election stakeholders made reports about such incidents.
The bodies of public administration and local self-government in charge of administering and holding elections, did not take any measures to detect and prevent these incidents.
Under such conditions the NGO Union of Informed Citizens recorded telephone conversations with the principals of 84 schools and 30 kindergartens, in which the latter described in detail how they were compiling the lists of voters and the circumstances surrounding these lists.61
The above principals essentially abused their office by making lists of citizens voting for the RPA and handed these lists over to the bodies of regional administration and local self-government, the relevant bodies of the administrative districts of capital Yerevan, the central electoral headquarters of the Republican Party, as well as the electoral headquarters of the candidates included in the RPA list. When carrying out an electoral campaign the latter included the employees – teachers – of the educational institution managed by them.
On 25.03.2017 the party alliance Ohanyan-Raffi-Oskanyan applied to the CEC for lodging a complaint to the court with a request to annul the registration of the RPA list on the basis of the facts publicized by the UIC. The party alliance ‘Yelq’ also applied to the CEC with a similar complaint. According to the CEC, while examining this application the CEC also examined the statements given to it by the above principals (hereinafter: ‘the Statements’).62
61 The NGO publicized (http://uicarmenia.org/) the audio recordings of the conversation with the principals of schools and kindergartens (hereinafter: Recordings) (See the article entitled “The Directors of Schools and Kindergartens Collect Votes for the Republican Party” published on the news website http://www.civilnet.am/). 62 The CEC acquired documents entitled “Statements,” which it attributed to the directors involved in the controversial recording. There is no evidence among the materials of the administrative proceedings proving that the identity of the authors of the Statements had been verified. There is no document concerning the status of the authors of the explanations, there is no explanation of who, where and when made a decision to take statements, how the authors of statements were notified about that, how they appeared among the materials of the case instituted on the basis of the application of ORO bloc of parties, why the same documents (originals) are the part of the materials of two different administrative proceedings and are in the folder of the 2nd administrative case.
32 The CEC admitted the occurrence of 2 incidents of influence on teachers and student parents by principals (in Khoznavar and Gyumri).
By its Decision no N-145A dated 28.03.2017, the CEC refused the application of the party alliance Ohanyan-Raffi-Oskanyan and by its Decision N-146A it refused the application of the party alliance ‘Yelq.’
The General Prosecutor’s Office and the investigative bodies did not carry out an effective examination into these cases 63.
2.4.2. Preparation for Voting
The violations registered in the preparatory phase reached 228 (13.2% of all the monitored violations) in 190 polling stations (in 12.4% of all the monitored polling stations). Furnishing of the Voting Room. The most frequent violation at the preparatory phase is the wrong furnishing of the voting room. The total number of violations in this phase was 146 in 130 polling stations, of which 89 related to access to the voting room, in particular the absence of ramps, which could render the entry of people with disabilities to the voting room difficult. 35 incidents of wrong furnished voting rooms were registered, which rendered it difficult for observers to effectively monitor the process of voting and the PEC work. Problems connected with the number and layout of voting booths were registered in 22 polling stations. In the overwhelming majority of these cases one voting booth was located in such a way as to render it possible to control voting inside the booth. In 10 cases the violation was rectified after the observer notified the commission of the violation. Only 25 out of the 146 violations were eliminated and 59 recorded in the PEC log.
63 The working group formed according to the order of the RA Prosecutor General is currently examining the material published by the “Union of Informed Citizens” entitled “ The Republican Party of Armenia (RPA) Abuses the Administrative Resources in Schools and Kindergartens: recordings.” Prosecutor General’s Office informed “NEWS.am” on March 26 about this. https://news.am/arm/news/380997.html No criminal case will be filed based on the materials related to the principal of school No. 37 in Gyumri. After investigating the prepared materials, the prosecutor’s office did not find any grounds for instituting a criminal case. Karen Gabrielyan, prosecutor of Shirak region, informed “Azatutyun.am” about this. http://www.azatutyun.am/a/28434875.html
33 The Working Procedure of PECs
The next category of violations in the phase of preparation for vote concerned the working procedure of PECs. The total number of violations at this stage was 45 in 43 polling stations, of which 19 violations were related to the failure to properly prepare the technichal equipment, 17 – to delays in starting the PEC sessions, while the remaining 9 violations concerned the violations of the order of the lot. Of the 45 registered violations only 11 were eliminated and 20 registered in the PEC log.
Existence of Campaign Materials in Polling Stations.
18 violations were registered in 17 polling stations concerning the existence of campaign materials in the voting room or the polling stations, of which only half were eliminated after the violations were detected and 7 incidents were recorded in the PEC log.
Problems Related to the Items of Voting.
Prior to the start of voting 6 incidents were registered in 6 polling stations, of which 4 were related to the failure to properly close or seal the ballot box and 2 – with the safe. All of the 6 violations were registered in the PEC log, the violations monitored in 4 polling stations were eliminated.
2.4.3. The Voting
The majority of violations detected by the observation mission was committed and registered in the course of voting. The overall number of violations at this stage was 919 (53.4% of all the monitored violations) in 498 polling stations (32.7% of all the monitored polling stations). Vote Buying and/or Promise of an Electoral Bribe The COI observers managed to register incidents of vote buying and promise of an electoral bribe in 5 polling stations, of which 4 were reflected in the PEC log. Directed Voting. The COI observers revealed 169 incidents of accompanied and directed voting in 131 polling stations throughout the territory of 31 TECs (nos 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 14, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,
34 29, 31, 32, 33, 34, 35, 36, 37), of which 84 were incidents of directed voting by persons entitled to be present at the polling station, including PEC members, proxies and observers, while 87 were committed by persons with no status or with no known status. In 68 of these incidents it was registered in whose favour directed voting occurred: in case of 43 voters directed voting occurred in favour of the RPA or its candidates (63,23% of the incidents when it was possible to detect the beneficiary of the violation), in 13 incidents – in favour of Tsarukyan Alliance (19,11% of the incidents when it was possible to detect the beneficiary of the violation). Only 48 of these violations were registered in the PEC log. Campaign or Anti-Campaign Materials in Polling Stations. The COI observers reported 169 incidents of the existence of campaign or anti-campaign materials in the polling stations in 131 polling stations throughout the territory of 33 TECs (nos 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36). Of these 3 the campaigning was done by people entitled to be present in the polling station, including PEC members, proxies, while in 4 cases - by people with no status or no known status. In 22 of these cases it was registered in favour of which party, alliance or candidate the campaign was done: in 18 incidents the campaign and campain materials related to the RPA and its territorial candidates, in 2 cases - Tsarukyan Alliance, in 1 case – ‘Yelq’ Alliance ad in 1 case – the ‘ORO’ Alliance. Only one of these incidents was registered in the PEC log. Violations of the Secrecy of the Vote, Controlled Voting.
There were 194 reports concerning violations of the secrecy of the vote in 143 polling stations throughout the territory of 36 TECs (nos 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38). These reports comprised information concerning 242 violations. A considerable part of the incidents – 124 – were related to violations of the secrecy of the vote by voters. Of these only 50 were registered in the PEC log. The remaining incidents concerned control over the voting of citizens, of which only 28 were registered in the PEC log.
Problems Related to Voting Items
58 incidents were observed in 51 polling stations, of which 30 were registered
35 in the PEC log. The absolute majority of these incidents (55) was related to taking the ballot in and out of the polling station. In another case the seal of the polling station disappeared for 2 hours (20.00-22.00), while in polling station 27/6 one of the PEC members left the polling station on the pretext of smoking, taking with him his individual seal.
Incidents of Multiple Voting or Voter Impersonation, Signing Instead of Others, as well as Double Voting.
In general 61 incidents of multiple voting or voter impersonation, signing instead of others, as well as double voting were observed in 58 polling stations throughout the territory of 30 TECs (nos 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 31, 32, 35, 36, 37, 38). Of these 50 were reflected in the PEC log. The majority of the observed violations – 31 incidents – were connected with double registration of a voter with the same ID. There were also 11 incidents of registering instead of another citizen and siginig instead of another in the voter list.
Violation of the Right to Vote.
The COI observers reported 15 incidents of depriving citizens of the right to vote from 15 polling stations throughout the territory of 11 TECs (nos 1, 4, 7, 8, 13, 23, 25, 26, 36, 37, 38). Of these only 10 were reflected in the PEC log.
Violations of the Working Order of PECs. 37 incidents of violations of the PEC working order were registered in 34 different polling stations, of which the majority (29) concerned the violation of the rotation while the remaining 8 incidents concerned either the delays in the start of voting or its start ahead of time contrary to what was prescribed by law. Only 12 of these 37 violations were registered in the PEC log. Violations of the Procedure of Assisted Voting. The COI observers registered 77 incidents of violations of the procedure of assisted voting in 65 polling stations throughout the territories of 27 TECs (nos 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 25, 27, 32, 33, 35, 36). Almost half of violations (39) were registered in the PEC log. The essence of this type of violations is that with a view to controlling voting (violation of the secrecy of the vote or creating such an illusion or
36 voting instead of the assisted person) persons in no need of assistance (as well as without any effort to find out whether a person does need assistance as the law does not foresee this possibility) are being assisted in casting their vote. It is noteworthy that ‘assistance’ is rendered at the voter’s request, as well as without such a request or offer. There were incidents when the so- called voters came to the polling station earlier having in mind that they had to ‘assist’ certain citizens. The incidents of assisted voting were accompanied by the following violations: assisting a voter by a person having no right to render such assistance, one and the same person assisting more than one voter, failure to register the data of the assisting person in the PEC log, assisting a voter in no need of such assistance. In response to the inquiry made by the Alliance Independent Observer, the CEC provided the following statistics: 70488 voters were assisted during the voting day (4.5% of the actual voters). Moreover, in 23 polling stations more than 20% of voters were assisted voters, while in 4 polling stations more than 30% of voters received assistance.64 Presence of Unauthorized Persons in Polling Stations. As was the case during past elections, unauthorized persons were present widely in polling stations during voting, as well as the summarisation of the results of the vote. The COI observers only registered 96 incidents in 80 different polling stations (in around 5.5% of all monitored polling stations). Neither PEC chairpersons, nor the police took any action to rectify the violations connected with the presence of unauthorized persons in polling stations. Only 29 of these incidents were registered in PEC logs. Overcrowding and gathering of vehicles The COI observers registered crowding of people and vehicles in polling stations and in territories within a radius of 50m, which is a violation of the Electoral Code and made 111 reports concerning 94 polling stations throughout the territories of 27 TECs (nos 2, 4, 5, 7, 8, 9, 10, 12, 14, 16, 17, 18, 19, 21, 22, 23, 25, 26, 27, 28, 29, 32, 33, 35, 36, 37, 38). As in the case of the presence of unauthorized persons in the voting room, the chairperson of the PEC and the police failed to take sufficient steps to eliminate the violations concerning the presence of unauthorized persons in polling stations. Only 25 of the above cases were registered in PEC logs. The
64 http://hcav.am/wp-content/uploads/2017/07/NA-report.pdf
37 importance of these incidents is that they are connected with coordinated transfer of voters to polling stations and directed voting. Failure to Livestream the Process in Polling Stations. Starting from 7.00am on the election day the livestream from all of the 1500 polling stations was disrupted.65 The disruption lasted until around 13.00p.m. following which the livestream was partially restored. The disruption coincided with that same period of the voting day when there was significant crowding in polling stations due to the fact that voters were brought to polling stations in an organised manner, there was open and directed voting and other major disruptions of the normal course of voting. There was no official statement regarding the causes of this disruption, which creates a reasonable doubt that it was done in an organised and coordinated manner in order to render the scale of violations in polling stations as invisible as possible and to limit broader public oversight over the processes taking place in polling stations. Other In addition to the above violations, there were 204 reports from 152 different polling stations concerning the process of voting. They included holding of dinner parties in the voting room by PEC members in the presence and sometimes even participation of voters, making marks on ballots with colour pens, electricity cuts, support to certain parties by observers from various observation missions, non-sealed voting passes, presence of candidates in the voting room, difference between voter numbers in electronic and paper- based voter lists, use of alcohol by PEC members while performing their official responsibilities.
Problems Related to the VADs
The CEC had tested the VADs twice before the E-day: the first testing took place on 12 February 2017 and the second on 25 March 2017. In the course of the first testing problems related to the reading of fingerprints were registered, which were mostly rectified by 25 March. Notwithstanding this fact, there were a number of problems related to VADs on the E-day, including equipment failures. However, there was no official and reasoned statement in this regard by any of the election administration bodies. There
65 https://www.azatutyun.am/a/28407083.html
38 was no effective examination of the causes and impact of these disruptions either.
The Number of Manually Registered Voters by Means of Manual Entry of the ID Data was Considerable - 229.757 according to the CEC Official Data66 Disruptions of the VADs.
155 incidents of temporary disruption of the VADs from 136 polling stations in the territories of 35 TECs (nos 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 38) were registered.
Incompliance between the Electronic Voter Lists Printed by the VADs and the Paper-Based Voter Lists
The COI observers registered 22 incidents of incompliance between the electronic voter lists and the paper-based voter lists in 17 polling stations in the territories of 13 TECs (nos 1, 2, 3, 4, 5, 7, 8, 16, 17, 26, 27, 33, 35).
The COI observers registered 12 cases of incompliance between the number of actual voters and signatures in paper-based voter lists from 10 polling stations in the territories of 8 TECs (nos 3, 4, 5, 7, 9, 22, 23, 34).
2.4.4. Summarisation of the Results of the Vote
The total number of violations during the summarisation of the results of the vote was 170 (about 9.8% of all the monitored violations) in 126 polling stations (8.2% of all the monitored polling stations).
Violations of the Working Procedures of PECs.
The COI registered 23 incidents of violations of the working procedures of PECs in 17 polling stations (nos 9/42, 9/7, 27/9, 3/20, 31/15, 31/55, 20/34, 7/13, 32/31, 4/22, 32/27, 3/17, 9/37, 28/2, 23/42, 3/14, 16/9 ). Only 13 of these cases were registered in PEC logs.
66 http://res.elections.am/images/doc/VAD.results02.04.17.pdf
39 Violations of the Procedure of the Summary of the Results of the Vote.
46 reports concerning violations of the procedures for counting and summarisation of the results of the vote were made concerning 35 polling stations in the territories of 17 TECs (nos 1, 2, 3, 4, 5, 7, 8, 9, 13, 17, 22, 23, 24, 27, 28, 29, 31), of which only 15 were registered in PEC logs. The violations in this group included 5 cases of violations of the sequence of counting of ballots; 5 violations of the procedure of taking the ballot out of the ballot box, announcing the vote and showing the ballot to the present; 1 case of unlawful annullment of the ballot; 7 cases of inclusion of unnecessary items in the envelope, 2 cases of failure to print a statement by the equipment or failure to provide it to those present; 9 cases of wrong counting and 2 cases of failure to properly record the baseline data and the results in the log; 13 cases of failure to provide an extract of the protocol to the present or to permit them to take picture of the protocol and 2 cases of violation of the procedure of packaging the voting items.
There were massive violations of the sequence of the steps during the summary of the results of the vote as prescribed by the Electoral Code. In particular, at first the statements from the VADs was printed and only after that the signatures in the signed voter lists were counted (the number of actual voters is a baseline data). By contrast, the Electoral Code prescribes first to count the signatures in signed voter lists, to record these data and only after this print the statement by the VAD.
Falsification of the Results of the Vote.
The COI observers registered 3 cases of falsification of the results of the vote, of which 2 occurred in the polling station no 2/11 and 1 – in TEC no 8.
The study of the concluding protocols from different polling stations revealed that in polling stations nos 5/2, 5/3, 5/6, 8/16, 8/26, the RPA (no 6) received 633 votes, while in polling stations nos 1/13, 2/27, 3/13, 3/14, 3/18, it received 596 votes. Such coincidences testify to the possibility of interference with the process in these polling stations.
Incompliances between the Total Number of Actual Voters Reflected in the VAD Statements and the Number of Signatures in the Signed Voter Lists.
The COI observers registered 22 cases of incompliance between the VAD
40 electronic lists and the signed voter lists in 17 polling stations. 20 of these cases were submitted to TECs as complaints, as well as reflected in the complaint submitted to the RA Central Electoral Commission on 7.04.2017.
2.4.5. Violations of General Nature
76 other violations were registered during the stage of summarisation of the results of the vote in 66 different polling stations, including electricity cuts, giving extracts of protocols to observers, representing other observation missions prior to the drawing of the protocols; PEC members leaving the polling station prior to the summarisation of the results of the vote; filling in the protocol extract in parallel with drawing of the protocol; prohibition to make extracts or take pictures from the PEC log; unauthorized persons attempting to enter the polling station by force; failure to annul the ballots in envelopes containing other pieces of paper or with different marks; violation of the procedure for taking the ballots out of the ballot box; entering the baseline data into the PEC log in pencil; active interference of a proxy with the PEC work; disruption of the work of polling station cameras, etc. Only 20 of these cases were recorded in PEC logs.
2.4.6 Violations of Observers’ Subjective Rights
Violations of Observer Rights.
The COI observers registered various violations of observers’ subjective rights, of which 45 cases in 43 polling stations (2.8% of all the polling stations) concerned the right to observe. In several polling stations the right of observers to take part in the preparatory session of the PEC was violated; there were restrictions of the right to get familiarized with electoral documentation and freely move in the polling station, etc. Furthermore, only 4 of these violations (10%) were registered in the PEC logs.
Incidents of Pressure on Observers.
The COI observers reported 13 incidents of pressure on observers in 11 polling stations (nos. 15/32, 2/1, 9/55, 8/1, 5/17, 5/14, 10/4, 4/44, 10/53,
41 32/34, 32/4), including threatening with a knife, incidents of psychological pressure and threats to observers. Only one of these incidents was registered in the PEC log.
One incident of removal of a COI observer was recorded in 1 polling station. Later this decision was annulled.
Refusal to Record an Observer’s Observation.
The COI observers recorded in total 1023 cases of failure by PECs to register the observers’ observations in PEC logs, of which 1001 cases were confirmed from 485 polling stations in the territories of 38 TECs.
Violations of the Right of Observers to Take Pictures and/or Videos.
The COI observers made 4 reports concerning obstruction of their right to take pictures and/or videos from 4 polling stations in the territories of 4 different TECs (nos 3, 10, 15, 33).
Failure to Provide the Documents Prescribed by Law to Observers.
The COI observers made 2 reports concerning failure to provide the documents prescribed by law to observers from 2 polling stations in the territories of 2 TECs (nos 4 and 29).
2.4.7 Problems/Violations Observed in the Aftermath of Voting
Problems Related to the Publication of and Access to Scanned Signed Voter Lists.
On 4.04.2017 the COI issued a statement declaring that the links to the scanned signed voter lists posted on the CEC website were disfuctional until 19.00p.m.67 On 6.04.2017 the CEC issued a clarification, according to which the difficulties of downloading the signed voter lists had to do with the heavy Internet traffic and that the lists were also published in an alternative format.68
67 https://www.citizenobserver.am/en/news/view/zzdv2017-04-04-19-18 68 http://res.elections.am/images/doc/mamul33.pdf
42 It is also noteworthy that the alternative link was on the personal cloud storage service of David Harutyunyan, the RA Government Chief of Staff.69 In other words, the signed voter lists were first made available to David Harutyunyan and only afterwards uploaded by him to the mentioned cloud storage service and made public from there.
According to the CEC Decision No 163-A dated 9.04.2017, 23 MPs, i.e. ¼ of the elected MPs recused themselves.70According to the media publications made prior to the publication of the CEC decision, 35 MPs filed applications on self-recusal.71 In conformity with another media publication, 12 MPs declared that they had not filed any applications on self-recusal.72 Furthermore, the media widely covered the fact that the biggest number of MPs filing applications on self-recusal were from Tsarukyan Alliance (23), which was followed by a statement from 12 of these MPs denying the fact that they had filed an application on self-recusal. This means that either forged applications had been submitted on behalf of these people or that applications on self-recusal had been obtained from them in advance to later use according to the moment’s necessity. This issue was also raised by the RA Constitutional Court in its Decision no CCD-1364 (paragraph 13).
Prior to the Constitutional Referendum in December 2015 the COI created the website ‘Control Your Vote,’ which was a mechanism intended for enabling the voters absent from Armenia to voter impersonation by means of prior registration of voters in this website.
Following the legislative amendment of 20.10.2016 whereby the signed voter lists were to be made publicly available, the COI improved the ‘Control Your Vote’ system by introducing an automated software for detecting incidents
69 02.04.2017-Chief of Staff of the Government of the Republic of Armenia, minister 70 http://res.elections.am/images/dec/17.201_A.pdf 71 http://armlur.am/685760/ 72 http://www.panorama.am/am/news/2017/05/03/%D5%84%D5%B8%D6%82%D5%AF%D 5%B8%D6%82%D5%B9%D5%B5%D5%A1%D5%B6-%D4%BE%D5%A1%D5%BC%D5%B8 %D6%82%D5%AF%D5%B5%D5%A1%D5%B6/1771302, http://yerkirmedia.am/1political/ carukyan-dashinq-inqnabacark-hrajarvel/ 12 out of 23 MPs from Tsarukyan Alliance of Parties having submitted self-recusals demand abolition of their applications: RFE / RL, May 3, 2017,May 3, 2017,https://www. azatutyun.am/a/28465916.html “tert.am”, May 3, 2017, http://www.tert.am/am/news/2017/05/03/saqunc/2359976
43 of voter impersonation for voters registered in the system in advance. The use of the software yeilded preliminary data, which proved inaccurate at the verification stage. Later it became clear that the error was due to the discrepancies between the electronic voter lists (uploaded to VADs) and the signed voter lists since voter numbers were in many cases different.
The COI software, which was to automatically ensure the digitalization of the signed voter lists with a view to rendering them searchable, also worked with a big percentage of error.
As a result, it was decided to digitalize the signed voter lists manually, which will enable a more multifaceted and complete study of these lists to eliminate the doubts related to any possible fraud in connection with voter impersonation, as well as voter lists in general. In view of the fact that the data are currently being digitalized manually, the process is time-consuming. Once this work is finalised the results of the analysis of the signed voter lists will be published.
2.4.8. Some Data Produced by the COI Analytical Team on the Basis of the Voter Lists
• The turnout of the military in the total number of the military included in the lists of military units was 86.2 %.73 • The number of voters in the polling stations opened in penitentiary institutions was 1533, while the actual number of voters in penitentiaries was 1360, i.e. 88.8 %. • Of the 751 voters having the right to vote in mental institutions 734, i.e. 97.7 % voted. The analysis of the voter lists posted on the website of the police on the 40th and 4th days preceding the day of voting, the following violations and/or falsifications were revealed:
73 According to the corresponding methodology, the COI calculated the number of military servicemen included in the lists of military units and the number of soldier voters participating in the voting. This methodology, as well as the quantitative data, are not published for national security considerations.
44 • 208.017 names, family names and patronymics repeated from 2 to 51 times. This observation, which was also reflected in the complaint of the ANC-PPA Alliance to the CEC, was refuted by the CEC by showing the photographs and passport data of only a few voters. • A comparision of the voter lists last published by the police ahead of the Constitutional Referendum on 06.12.2015 and the 02.04.2017 elections to the National Assembly revealed that 106.084 citizens were registsred in addresses that did not exist during the Constitutional Referendum of 06.12.2015.74
2.4.9. Observation of TEC Activities
In the framework of the new COI tactics, the organisations carrying out the observation mission, deployed observers also in TECs in the period of 2-7 April 2017. This tactics revealed the complete dependence of TECs from the CEC and inability of the former to act independently and autonomously from the CEC. It was also possible to reveal with the help of observers that contrary to what was forseen by the Electoral Code, TECs operated essentially as the CEC’s subdivisions. Under various pretexts TECs obstructed the exercise by observers of their observation rights (demanded that observers vacated the TEC premises on the pretext that they had no right to be there when there are no hearings).75 All the TECs informed the COI observers in the period of 4-7 April 2017 that they had no other duties besides the scanning of the signed voter lists and receipt of the complaints of observers, observation missions, proxies, as well as the applications of parties/party alliances on annulling the results of the vote in a particular polling station or recounts. The TECs repeated the same justifications after they had sent all the electoral documentation under their disposal to the CEC by 7.04.2017, insisting that the only duty they had was taking care of the salaries of TEC members. This was the situation nothwitstanding the fact that more than 300 complaints were submitted on behalf of the COI observers to different TECs.
74 The CEC’s only argument concerning new addresses was that these new addresses were registered after December 6,2015 constitutional referendum and before April 2, 2017 Parliamentary Elections. 75 Such incidents were recorded in Territorial Electoral Commissions nos 3, 11, 12 and 14.
45 There were also cases when observers were forcibly removed from TEC premises.76 In some cases the TEC members locked the doors from inside and did not allow the observers to be present on the premises occupied by TECs and to observe their activities.77 In some cases the TEC members explained that the TEC had no hearing, nor did it perform any other function to allow the observers to observe them or declared that their working day was over and left.78 However, the observers did not leave the TEC premises and reported that several hours later TEC members returned to their offices. The observers also recorded that TECs took no action in the area of examining the complaints submitted to them in the period observed. The observers also registered facts when TECs referred the complaints to the CEC in order to obtain the latter’s position in their regard.
76 3rd and 14th Territorial Electoral Commissions 77 12th Territorial Electoral Commission 78 11th and 27th Territorial Electoral Commissions
46 3. ELECTION-RELATED COMPLAINTS
3.1. Brief Summary of the Process of Complaints
One of the special features of the COI is the initiation of a process of complaints and strategic litigation with a view to protecting observers’ subjective rights and the general (objective) electoral rights on the facts of violations observed in the course of elections. The legal team of the observation mission initiatied a process of complaints on the basis of the facts of violations observed and reported by observers during the 2017 parliamentary elections. On 3 and 4 April 2017, 309 complaints were submitted to 37 TECs on behalf of observation organisations and observers on the facts of both violations of subjective electoral rights and general (objective) electoral rights. Of these 160 complaints concerned violations of objective electoral rights, and 149 – subjective. No complaints were submitted to TEC 6 given the fact that the three orgnisations monitoring the elections within the COI had no observers in the polling stations located in the territory of TEC 6.79 The TECs refused to institute administrative proceedings on the basis of the overwhelming majority of complaints submitted on the facts of violations registered during the parliamentary elections held on 2 April 2017 (99 decisions) on the pretext that neither the observers nor the observer organisations had a standing to bring such complaints relying on paragraph 3 of Article 48 and sub-paragraph 4 of paragraph 1 of Article 49 of the RA Electoral Code. Accordingly, no effective examination was carried out by TECs of the facts reflected in these complaints. In those few cases when TECs did examine the submitted complaints (in such cases the examination was done on the facts of violation of the subjective rights of observers), it was neither comprehensive nor objective but purely formal.
79 Observation mission in the polling stations of 6th electoral district was carried out by another organisation.
47 3.1.1. On the Legal Standing of the Observation OrganiSations and Observers
● On the Legal Standing of the Observation Organisations and Observers Bringing Complaints on the Violations of Objective Electoral Rights.
Refusal by TECs to institute proceedings on the basis of absence of legal standing on the part of observation organisations and observers to bring complaints (on objective violations) to challenge the actions/inaction of PECs, as well as the narrow and arbitrary interpretation of law, including the Electoral Code given by TECs is contrary to Article 48 of the RA Constitution and Article 3 of Protocol No 1 to the European Convention on Human Rights in view of the fact that anyone having a right to vote must also have a right to an effective remedy against violations of this right. In particular, paragraph 3 of Article 48 of the RA Electoral Code prescribes that anyone may challenge the decisions/actions/inaction of electoral commissions if s/ he believes that his/her subjective right prescribed by the Electoral Code has or may be violated. This right includes the right of every citizen to challenge the violations of objective electoral rights, the decisions/actions/ inaction of electoral commissions given the fact that electoral violations may in their entirety and/or by their nature have a direct impact on the vote of each voter. Hence, the complaints submitted by any subject of electoral relations, including an observer or observation organisation on the grounds of violations of objective electoral rights have to be examined. The opposite will lead to the disruption of the essence of electoral rights. ● On the Refusal to Institute Administrative Proceedings in Relation to Complainant Organisations: the Legal Standing of Non-Governmental Organisations.
In conformity with the decisions of TECs, non-governmental organisations do not have a legal standing to bring complaints given the fact that the rights of non-governmental organisations as prescribed by Articles 30 and 31 of the RA Electoral Code, concern accreditation for carrying out an observation mission only. It was also stated in TEC decisions that the RA Electoral Code does not foresee any other right besides the right to accreditation.
48 The refusal to institute administrative proceedings on this ground is contrary to the RA Electoral Code. Article 30 of the RA Electoral Code confers on the non-governmental organisations the right to carry out an observation mission during elections80, which a given organisation exercises through its accredited observers. The grounds concerning the legal standing of an observer to bring electoral complaints apply equally to observation organisations given the fact that the latter have full standing in bringing electoral complaints. The right to engage in an observation mission is a public function aimed at ensuring the transparency of elections and contributing to proper conduct of elections. The effectiveness of the above public function is conditioned inter alia by the possibility of an observation organisation to bring election- related complaints (legal standing) on both objective and subjective electoral rights, especially given the fact that the violation of observers’ rights entails a violation of the right to observation of an organisation, as well as the right to seek and receive information as prescribed by Article 42 of the RA Constitution and Article 10 of the Convention.
The fact that non-governmental organisations have a legal standing in cases concerning the protection of collective or community rights within their statutory goals (actio popularis) 81 is confirmed by the Decision No-906 of the RA Constitutional Court dated 07.09.2010, the Decision no CC/3275/05/08 of the RA Cassation Court dated 30.10.2009, as well as the Recommendation No (2004)20 of the CoE Committee of Ministers on the Judicial Review over Administrative Acts dated 15.12.2004, the positions of which apply also to the right to bring complaints (the legal standing) on electoral violations.
3.1.2. On the Violations of Subjective Electoral Rights of Observers
The overwhelming majority of the violations of the subjective rights of observers was manifested in the refusal by PECs to record an observer’s
80 Organisations that have statutory goals for at least one year preceding the E-Day include issues of democracy and human rights protection and which do not support candidates or parties participating in elections. 81 One of the statutory goals of the monitoring organisations is the protection of democracy and human rights, the protection of collective or community-specific interests, as well as conduct of oversight over the legitimacy of elections and referenda, protection of the rights of others, the collective rights of a particular group.
49 observation in the PEC log, in which connection TECs’ assumptions/positions were literally outlandish.
● On the Refusal to Record the Observers’ Observations in PEC Logs.
In the overwhelming majority of decisions TECs found that the observer- complainants failed to invoke any fact of violation of their subjective rights in their complaints. Instead, in the submitted complaints they merely alleged violations of the RA Electoral Code that had nothing to do with their rights as observers. TECs obviously overlooked the fact that these complaints challenged inter alia the actions/inaction of PECs on the grounds of violation of observers’ subjective rights given the fact that the violations recorded by observers were not recorded in PEC logs, which resulted in the violation of their subjective rights prescribed by Article 67 of the RA Electoral Code.
3.1.3. The Delivery of Complaints to TECs and the Process of their Handover
In the light of the requirement of the RA Electoral Code to hand-deliver the complaints to the relevant electoral commission within the set deadline, on the days following the elections (3 and 4) the COI started delivering the complaints to relevant TECs. Given the limitations of the mission’s resources, this process was organised in the following manner: one person was delivering complaints to several TECs starting from 3 April, and on 4 April from 9.00am to 11.00am. Due to some technical obstacles, it was not possible to deliver some complaints in a timely manner (the duration of delays was 30-40 minutes). Three TECs (nos 4, 11 (in case of part of the complaints) and 13) returned the submitted complaints without examination on the pretext that they were submitted 30-40 minutes later than the set deadline when these delays were due to the same or another TEC creating artificial obstacles in accepting the complaints. It appeared that in order to accept the complaints TECs required to enclose certain documents with complaints and refused to accept them when these documents were not attached. Some TECs refused to accept the complaints on the pretext that the people delivering the complaints failed to show POAs corroborating that they were
50 authorized to deliver the complaints. Other TECs demanded passports from these people on the pretext that they had to register their data contrary to the requirements of the law. It was only after lengthy explanations and justifications that these complaints were accepted. Some TECs refused to give a receipt (proof) on accepting the complaints. In many cases instead of immediately accepting the complaints, TEC members started getting familiarized with them and the list of enclosed documentation and wrote the time of finalising the process of such checks on the receipt, which delayed considerably the process of handover. The above problems are artificial and not prescribed by law given the fact that TECs have no right to refuse to accept the complaints. Apart from that, on different pretexts TECs artificially delayed the process of accepting the complaints, as a result of which in several cases complaints were marked by TECs as submitted after the set deadline.
3.1.4. Notices on TEC Sessions and Timelimits for Examining the Complaints
● In a number of cases TECs notified the complainants on the date and time of the sessions convened for examining the complaints by phone on the same date as the session (7.04.2017) 1-2 hours prior to the session.82 In all the listed TECs the sessions were appointed at the same time – at 12.00pm on 7.04.2017– while the observers were notified of the time of the sessions 1-2 hours prior to the session (except for four TECs).83 Following the receipt of notifications of the forthcoming sessions, the observers’ representatives made oral motions over the phone on postponing the sessions, justifying it with the necessity to ensure the observers’ participation in these sessions, as well as by the need to give time to observers’ representatives to reach the
82 Territorial Electoral Commissions no 10, 12, 15, 16, 19, 23, 24, 29 and 33. 83 TEC 10, which after postponing the April 6, 2017 hearing notified about the hearing to be held at 10:15am on April 7, 2017 at 9:50am on the same day. TEC 19, which notified about the hearing to be held at 16:00 on the same day at 13:00. TEC 32 (town Gyumri) notified about the hearing to be held at 10:30am on April 7, 2017 at 22:00on April 6. TEC 38 (town Ijevan) notified about the hearing to be held at 12:00pm on April 7 at 22:49on April 6, 2017.
51 relevant region from the capital Yerevan. These motions were not granted and the sessions were held in the absence of the complainants or their representatives in violation of the requirements of due notice and depriving them of the right to be heard and to proper administrative process. It is obvious that these actions were taken with the direct intent to exclude the participation of observers and their representatives from these sessions. This conclusion is also confirmed by the fact that neither the observation organisations nor observers were notified of the sessions appointed on 7.04.2017 in the capital Yerevan by 7 out of the 9 TECs located in Yerevan, considering the fact that the complainants’ representative were in Yerevan and could participate in sessions convened in Yerevan even if notified of them 1-2 hours prior to these sessions. TEC no 10 notified of one postponed session 25 minutes prior to the session.84 Two chairpersons of TECs confirmed that they had appointed the sessions on the same date and hour at CEC’s advice.85 ● 13 TECs Never Notified the Complainants of the Forthcoming Sessions and/or Examination of the Complaints and Neither Did They Notify the Complainants of the Adopted Decisions86. By faling to duly notify the complainants of TEC sessions, the TECs prevented the complainants from receiving any information on the examination of the submitted complaints օռ the adopted decisions. In some cases those sessions in TECs, which the COI lawyers managed to attend, were being postponed without any reason or the lawyers were told that these sessions would not take place. Later these sessions were held without notifications (For example, in TEC 1 the session appointed on 8.04.2017 was postponed on the pretext that one TEC member felt bad. However, this session was held at a later hour without any notification. In TEC no 5 the lawyer arriving for a session appointed at 12.00pm was told
84 The hearing at TEC 10 was held on April 6, 2017 with the participation of the applicants. It was subsequently postponed for consideration of the submitted motions, provided that relevant notification would be provided in a reasonable timeframe. This, however, was not ensured. 85 During the phone conversation with the lawyers of the COI the representatives of TECs 2 and 29 informed that the days and hours of the hearings of the complaints in all the TECs were agreed with the CEC (evidence is available). 86 Territorial Electoral Commissions no 1, 2, 3, 4, 5, 7, 8, 11, 13, 17, 34, 36 and 37.
52 that the session was not going to take place. However, this session was also held at a later hour). Due to failures to notify the complainants in a duly and timely manner, as well as misinformation by TECs, the complainants’ representatives were able to take part in sessions of only 10 TECs.87
3.1.5. Sessions and Decisions of TECs on the Submitted Complaints
● In a number of cases TECs refused to institute administrative proceedings on the pretext that POAs on behalf of certain observers were not provided.
However, failure to submit a POA by a complainant’s representative must be followed by a procedure whereby this POA is requested and provided additionally within a reasonable timeframe rather than a refusal to institute administrative proceedings.88 The refusal to institute proceedings by TECs was not lawful and contradicted the requirements of Article 49 of the Electoral Code, Article 24 of the RA Law on Legal Acts and Articles 61(1) and 78 of the RA Constitution.
● In some cases the grounds on which TECs refused to institute administrative proceedings were exclusively the explanations provided by PEC chairpersons.89
It was stated in these decisions that the review of PEC logs had revealed that the observers had never demanded the inclusion of their observations in those logs. However, it is obvious that the review of PEC logs can never be regarded
87 Territorial Electoral Commissions no 9, 10 /during the first hearing/, TECs no 11, 14, 21, 26, 28, 31, 20 and 22. 88 Legal grounds: Articles 61(1) and 78 of the Constitution of the Republic of Armenia; paragraph 4 of Part 1 and Part 2 of Article 49 of the RA Electoral Code; Part 7 of Article 24 of the RA Law “On Legal Acts.” 89 April 8, 2017 decisions No 8-A, 9-A, 10-A of 8th Territorial Electoral Commission, April 7, 2017 decisions No 18-A, 19-A of the 9th Territorial Electoral Commission, April 7, 2017 Decisions No 14-A, 15-A of the 16th Territorial Electoral Commission; April 7, 2017 decision No 7-A of TEC no 3; April 7, 2017 decisions No 23-A and 25-A of TEC no 20; April 7, 2017 decisions No 8-A, 9-A and 11-A of the TEC no 7; April 7, 2017 decision N2-A of TEC no 2; Decision No 9-A of TEC no 29.
53 as proof of failure by observers to put forward such a demand. It was also stated in TEC decisions that TECs made oral inquiries to the chairpersons of relevant PECs90 and concluded that any demand of observers to write down their observations in PEC logs was met, while absence of observations in logs meant that the observers had not put forward such a demand. On the basis of the aforesaid TECs decided that the claims raised by the complainants were groundless and the facts of violations – non-existent. Considering the aforesaid it becomes obvious that TECs lacked impartiality since they deemed the fact of failure by an observer to demand inclusion of his/her observation in the PEC log confirmed by explanations of PEC chairpersons only and refused to seek for other evidence, such as interviewing other witnesses, such as proxies, observers, media representatives, visitors, other PEC members. This was done in violation of the provisions of the RA Law on the Basics of Administration and the Administrative Proceedings, which require that administrative proceedings are held in a comprehensive, complete and objective manner. This fact comes to prove that in many cases TECs held administrative proceedings without notifying the participants of these proceedings, as a result of which the latters’ rigths to be heard and to proper administrative proceedings were violated. In other words, TECs decided not to istitute administrative proceedings on the basis of the submitted complaints. However, the aforesaid interviews of PEC chairpersons are components of administrative proceedings. Furthermore, the above inquiries were made to PEC chairpersons, whereas admitting the facts of violations would entail liability for these officials.
● TECs decided that violations invoked in the submitted complaints are not violations of the voting procedure or of the Electoral Code.
In some cases by their decisions TECs assessed the nature of invoked violations and dismissed the complaints on the grounds that the complaints contained no facts of violations of the procedure of voting or of the Electoral Code,91 stating that failure to note such a violation in the PEC log did not entail a violation of an observer’s right.92 For example, in its Decision no 13-A TEC no
90 In one case the inquiry was sent not only to the chairman but also to the secretary of the same commission. In exceptional cases, there were references to the written explanations of chairpersons of the precinct electoral commissions in decisions. 91 07.04.2017 Decisions N9-A, 13-A and 14-A of TEC no 29; 07.04.2017 Decisions N6-A, 7-A and 9-A of TEC no 12. 92 TEC no 12 by its decisions No. 7-A (the commission found that posting of the photos
54 29 found that an observer did not have a right to take pictures of the electoral documentation (the case related to photographing the PEC log whereas there is no restriction by law to take a picture of the PEC log) despite the fact that it also noted that the observer exercised a right conferred by the RA Electoral Code (given the fact that the permission was given minutes later).
Although TECs refused to institute proceedings on the pretext that neither the observers nor observation organisations had legal standing, they sometimes touched upon the claims raised by these complaints, stating, in particular that the facts invoked by the complaints could not have any impact whatsoever on the results of voting, never giving any reason as to how they arrived at such a conclusion.93
● TECs’ approach was formal and arbitrary in deciding on the admissibility and merits of the complaints.
TECs overlooked the submitted motions or they were rejected by a unilateral decision of TEC chairpersons.
In some cases TECs decided to reject the complaints given the fact that the observers having submitted them were not registered in PEC logs94, and could not, therefore, observe any violations. The observers, however, were present at polling stations and carried out an observation mission. Failure to register the observers could only testify to failure by the chaipersons and secretaries of PECs to properly discharge their functions.
● In 6 cases TECs adopted decisions, by which they motioned the Central Electoral Commission to invalidate the certificates of accreditation of 9 PEC chairpersons.95
of the well-known representatives of parties / allianced in the premise of the precinct cannot be qualified as a violation of the voting procedure) and 9A (the commission found that election bribe distribution is not a violation of the voting procedure defined by the Electoral Code of Armenia and rather has characteristics of Article 1542 of the Criminal Code of the Republic of Armenia. Therefore the TEC no12 did not examine the complaint but sent it to the RA Prosecutor’s Office). 93 For example the 06.04.207 decision N8-A of TEC no 36. 94 TEC 20, Kristineh Sahak Lazaryan; observer at polling station N 20/22. TEC 20, Ani Hovhannisyan; observer at polling station N 20/17. TEC 20, Anna Vardanyan; observer at polling station N 20/12. 95 Decision N11-A of the TEC 17; Decision N12-A of the TEC 19; Decision N19-A of the TEC 15; Decision N9-A of the TEC 11; Decision N10-A of the TEC 14; Decision N10-A of the TEC 26.
55 Moreover, in case of 5 decisions the motions were submitted on the grounds that the relevant PEC chairpersons failed to ensure that the observers’ observations on the violations of the procedure of voting were included in the logs (including their observations on the existence of campaign materials in PECs). In one case the motion was based on the restriction of the right of an observer to take part in the preparatory session of the PEC.
It should be emphasized that it is not clear what reasons and guidelines governed TECs in motioning the CEC to invalidate the accreditation certificates in the above few cases in a situation when in the majority of cases the refusal by PECs to include an observer’s observation in the PEC log was not assessed as violation of the subjective rights of observers and it was on this ground that the institution of administrative proceedings was refused.
● In five cases theTE Cs referred the complaints to the law enforcement bodies while the relevant violations (vote-buying, pressure and intimidation of observers) were assessed as not having any impact on the results of elections.96
● The decision of TECs did not refer to the motions submitted to the relevant commissions.
In all cases when observation organisations were able to participate in TEC sessions, they submitted motions to TECs on: 1) examining the logs of PECs located in the territory of the relevant TEC; 2) obtaining and/or examining the videos of the process shot in the PECs located in the territory of the relevant TEC; 3) enclosing the existing evidence to the materials of the administrative case and examining them97, 4) inviting the members of PECs and other particiants of the electoral process as witnesses. Although it was not possible to ensure the participation of the representatives of the observation organisations in TEC no 18, the above motions were nevertheless submitted to the relevant TEC.98 ТEC decisions did not touch upon the submitted motions, the TECs refused to consider these motions, which resulted in a violation of
96 Decision N12-A of the TEC 9; Decision N9-A of the TEC 12; Decision N10-A of the TEC 8; Decision N18-A of the TEC 2; Decision N8-A of the TEC 5. 97 In exceptional cases a motion for attaching evidence to the case file was not submitted. 98 Written motions were also submitted to a number of TECs located in Yerevan. However, taking into account that in most of the cases the applicants were not notified about the hearings of territorial commissions based in Yerevan, it is not clear whether examination of complaints was made by the commissions by the date of submission of motions or not.
56 the requirements of comprehensiveness, completeness and objectiveness of the administrative proceedings, as well as of the complainants’ rights.99
● TECs adopted their decisions in such timeframes that prevented the CEC from examining the appeals against these decisions prior to the summarisation of the results of elections and assessing them while summarizing these results.100
All of the TEC decisions on the complaints submitted by COI observers and organisations, with very few exceptions, were adopted on 07.04.2017. TECs no 1 and 8 adopted the decisions on the submitted complaints on 08.04.2017. Although these decisions were dated 07.04.2017 and 08.04.2017, in many cases they were posted in a visible place on the premises of the relevant TEC much later.101 Moreover, as a rule the administrative buildings where TEC premises were located, were closed on 08.04.2017 and 09.04.2017 given the fact that these were non-working days, which barred any access to these decisions.
● The complaints submitted later than the set deadline were not considered at all.
In case of three TECs (nos 4, 11 (concerning part of the complaints) and 13) the submitted complaints were returned without consideration on the pretext that they had been submitted 30-40 minutes later than the set deadline in a situation when the delay was conditioned by the creation of artificial obstacles in accepting the complaints by the same or another TEC.
In these cases TECs issued no notices on the examination of the complaints. The fact that some complaints were submitted 40 minutes later was directly conditioned by the unlawful actions of TEC no 5 given the fact that prior to delivering these complaints to TEC 4 the representative of complainants delivered complaints also to TEC no 5. The latter TEC accepted the complaints with a 40-minute delay due to artificial obstacles. On 5 April, the observers’ representative motioned TEC no 4 to deem the missed deadline for a good
99 Articles 44, 45 and 75 of the RA Law “On the Basics of Administration and Administrative Proceedings”, the right of proper administration guaranteed by Article 50 of the Constitution of the Republic of Armenia. 100 Except for four decisions, which were made on April 5 and 6, however, their access was ensured later. 101 Decisions of TECs 1, 3, 9, 12, 15, 16, 19, 24, 29, 33, 34, 35 and 37.
57 reasom by indicating the reasons why these complaints were submitted late. At the same time, it was stated in the said motion that there was evidence of the artificial obstacles set by TEC no 5, which were submitted on April 6. At the same time, it was proposed that the person responsible for the delivery of the complaints to TECs nos 4 and 5 be involved in the administrative proceedings with a view to providing explanations. The relevant evidence was submitted to TEC no 4 on 6 April (by 3 electronic carriers). This motion was not considered by TEC no 4 and the complaints were returned on 5.04.2017 with a note and were recieved by the complainants on 10.04.2017 by post.102 The stated reason for returning the complaints without examination was the provision of the RA Electoral Code, according to which complaints submitted after the set deadline will not be examined and are returned to the complainant with a note stating the reasons of return. It was also stated in the decisions that the RA Electoral Code had no provision on ‘missing the deadline for a good reason.’ Nevertheless, the possibility of restoring the deadline had to apply to the extent to which the requirements of the RA Law on the Basics of Administration and the Administrative Proceedings applied to the administrative proceedings held by electoral commissions. A similar case was recorded in TEC no 13. However, in other cases the norms of the same Electoral Code were applied with a diametrically opposite interpretation. For example, the Decision no 162-A of the RA Central Electoral Commission dated 09.04.2017 recorded that despite the fact that the complaint on voter impersonation had been submitted in breach of the set deadline, the complaint was examined by TEC no 33, and a decision was adopted, which corroborated that voting instead of the complainant occurred in polling station no 33/39. Another incident testifying to the application of double standards was the case of ARF party having submitted a complaint to the CEC which was readdressed to TEC no 17 (Decision of the CEC no 162-A dated 09.04.2017) whereas according to paragraph 3 of Article 49 of the RA Electoral Code any complaint submitted to a commission, which is not competent to decide on it, must be returned to the complainants without examination. TEC no 11 returned part of the complaints. The relevant complaints were not signed
102 Although the letter of TEC no 4 was dated 05.04.2017, there was a statement among the returned documents according to which the evidence was submitted by the applicants on 06.04.2017 (there is a note concerning the date and time of submission), which makes obvious that the motion to return the complaints of applications could be made by TEC no 4 only after 06.04.2017 or on the same day, but not earlier. Therefore, the statement was backdated.
58 and the TEC suggested that they be signed following noting the shortcomings of the complaints in the course of acceptance thereof. A COE staff member brought the complaints to the office. However, when s/he took them back after ensuring that they were signed, it appeared that TEC no 11 found they were submitted in breach of the deadline.103
3.1.6. On Failure to Examine the Facts of Violations (or Parts Thereof) Reflected in the Complaints by the Initiative of TECs
When TECs adopted decisions on refusing to institute administrative proceedings on the basis of the complaints of the COI observers and observation organisations, some TECs simultaneously adopted separate decisions on examining the facts of violations (or a part thereof) raised in the complaints on their own initiative.104 Never were these proceedings held with the participation of the complainant organisations or observers and neither were the latter notified of the decisions taken as a result. At the same time, TECs failed to obtain information about the relevant violations from any other source (the witness observers, media representatives, proxies, visitors, other PEC members, voters, etc.) and neither were they involved in the proceedings. TECs also failed to examine the footage from the relevant polling stations.
The institution of administrative proceedings on their own initiative pursued a formal aim to merely demonstrate that the invoked facts of vioations were duly examined. The formal and ineffective nature of the proceedings is best corroborated by the adopted decision, the examination of which demonstrates that they were adopted with the sole aim of registering the fact that the invoked violations had no impact whatsoever on the results of the vote.105 These decisions failed to meet the minimum requirements of being grounded or well-reasoned. All of them stated that the examined factual circumstances had no impact whatsoever on the results of the vote. At the
103 The complaints to TEC no 11 located in Ararat region were re-submitted an hour later (which was necessary to bring back the part of the complaints to Yerevan, to ensure their signing and to re-submit them). 104 April 5 decisions were made by TEC 37. April 6 decisions were made by TEC 13. April 7 decisions were made by TECs 3, 5, 7, 9, 10, 11, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 31, 33, 35, 36 and 38. April 8 decisions were made by TECs 1, 2, 8 and 14. 105 The decisions were typically posted in the TEC premises.
59 same time, the TECs refuted the facts of violations by the oral responses of PEC chairpersons, which were the foundation of their decisions.
3.1.7. Օn the Obstacles to the Right to Appeal the TEC Decisions
A very serious obstacle in terms of the right to appeal the TEC decisions was the absence of due notices on the appointment of TEC sessions, as well as on the adoption of decisions in these sessions, which rendered the acquisition and appeal of these decisions within the set deadline practically impossible.106
The timing of adoption of these decisions by TECs and their posting on the wall on the TEC premises was totally unpredictable for the complainant organisations and observers. Even when the observers’ representatives were notified of the appointed sessions, this itself did not guarantee that they were notified of the adoption of the decision during the same session,107 as well as its posting on the premises of the TEC108 (i.e. at least the timing of their posting by TECs)
It should be noted that the legislature’s choice of ensuring access to these decisions by means of posting them on the premises of TECs, considering the extremely limited timing for their appeal, does not pursue a legitimate aim and was not proportionate in a situation when after adoption these decisions could have been posted on the CEC website (in the likeness of the decisions related to the decisions of TECs on the results of voting). This regulation implies that in order not to lose the very limited deadline the complainant must keep guard (also during nighttime) within at least 24 hours after the adoption of the decision in the relevant TEC in order to obtain the decision and not to lose the less then 3-day timelimit for appealing it. It is obvious
106 According to Part 6 of Article 47 of the Electoral Code, the administrative act adopted by territorial electoral commissions enters into force from the moment of its publication at the meeting. 107 In a number of cases the meetings were postponed and the decisions were adopted during other hearings. 108 The new Electoral Code adopted on May 25, 2016 unlike the old one adopted on May 26, 2011, no longer envisages an obligation for territorial electoral commissions to send a short message about adoption of an administrative act after its posting on the premises of the commission in a visible for everyone place.
60 that not only the prescribed provisions do not conform to the principle of legal certainty as prescribed by Articles 1 and 79 of the RA Constitution but also Article 61 of the Constitution on the right to an effective judicial process, Article 48 – the right to suffrage and the right to an effective remedy as set in the ECHR, Protocol 1(3) and Article 13 ECHR. Furthermore, the 2 days following April 7 were non-working days and the buildings where TECs were located were normally closed without any chance of access to these decisions. As regards the obligation to send the decision to the complainants, relevant TECs posted the administrative act to the participants of the administrative proceedings within three days having enclosed the postal receipt to the case. In other words, the deadline for appeal may be expired even at the moment of posting the decision. Therefore, this regulation does not guarantee the right to appeal either.
3.1.8. The Participation and Interference of the CEC with the Activities of the PECs and TECs: Absence of Independence on the Part of TECs
Apart from the fact that the reasons stated in TEC decisions are literally identical (which is impossible if these decisions are not adopted from one and the same center) in one case (in two decisions adopted by TEC no 30) it was registered that the TECs were in possession of a prewritten template for rejecting the institution of administrative proceedings, which was most probably foreseen for all TECs in view of the fact that there was an ellipsis in the place of the TEC number and name of the complainant.109 Apart from this, the templates contained justifications in case the complainant is a non-governmental organisation, and this text was identical in the adopted decision. These facts prove that the CEC orchestrated the TECs in the creation of artificial obstacles for observers and their representatives in taking part in the examination of their complaints, lack of effective examination of the facts of violations and their impact assessment on the results of voting, as well as lack of independence of TECs.
The examination of the complaints in TECs was purely formal in nature, TECs had prewritten decisions at their disposal, which were simply read
109 05.04.2017 decisions N5-A and 6-A adopted by TEC 30.
61 out during sessions and adopted without any changes. No action was taken to examine the cases on their merits. This is testified by the fact that the motions submitted by the representatives of the observers and observation organisations concerning inviting witnesses, examining PEC logs, the footage from polling stations, as well as the submitted evidence were either declined by TECs or not admitted being qualified as new complaints.110 There was no word about the submitted motions in the decisions themselves presumably due to the fact that the drafts of these decisions had been prepared in advance and not modified. Although in some cases it was possible to ensure the participation of observers who provided explanations on the violations reported by them, these were not reflected in TEC decisions either.
3.1.9. On the Complaints Submitted to the CEC and Examination Thereof
Prior to 09.04.2017 when the CEC convened a session to sum up the results of the 2017 parliamentary elections, the observation organisations managed to obtain part of TEC decisions and submit 67 appeals on the decisions adopted by 18 TECs (nos 2, 5, 9, 10, 11, 14, 18, 20, 21, 22, 23, 25, 26, 27, 28, 30, 31, 32, 36)111. Part of these appeals were submitted on 8 April while the other part – on 9 April.
It was impossible to obtain the decisions of a number of TECs within three days after they were pronounced in TEC sessions and appeal them to the CEC within a three-day period considering the fact that these delays occurred for reasons beyond the power of complainants and clearly appeals could not have been written on the basis of presumptions. Nevertheless, the CEC denied admissibility and returned the appeals brought against the decisions of TECs 1, 3, 9, 12, 15, 16, 19, 24, 29, 33, 34, 35, 37, 38.112 The
110 Only in one case an incomplete examination of the evidence was carried out. 111 The submitted complaints were merged by the TECs and decisions were adopted concerning a number of complaints at once. 112 Dates of complaints lodged with the CEC per TECs: TEC 1 - 18.04.2017 TEC 3 - 11.04.2017 (additional materials were submitted on 12.04.2017) TEC 9 - 10.04.2017 (complaint was filed against the inaction of the precinct electoral commission; the CEC ruled that this complaint should have been submitted to the corresponding TEC instead of the CEC)
62 stated reason was that these appeals were submitted after the set deadline. In the meantime, the CEC refused to admit the appeals for the stated reason that they were submitted on a non-working day (despite the fact that on that very non-working day the CEC sat in a session summing up the results of elections). Therefore, the complaints were resubmitted to the CEC on the following working day – 10.04.2017. On the following days as TECs decisions became available, 42 more appeals were submitted to the CEC. The appeals submitted to the CEC were examined in three sessions – on 2, 4 and 6 May. At 10.09.am on 2.05.2017 the appellants’ representatives were notified over the phone on the examination of the appeals against the decisions of 12 TECs at 18.00pm of that day. The representatives of observers (who are the representatives of all the complaints submitted to TECs on behalf of observers and observation organisations) motioned the CEC to postpone the session considering the unreasonable timing of the appointed session, the necessity to ensure the participation of observers, the number of the appellant observers, as well as the fact that many observers reside in various regions of Armenia. The motion was declined by the CEC in the course of the session held at 18.00pm on the ground that there is no factual circumstance which needs to be corroborated by this evidence.
In the course of the CEC session the representatives of observers made the following motions: 1) to examine the logs of PECs located in the territory of the relevant TECs; 2) to obtain and/or examine the copies of the footage made in the relevant PECs; 3) to invite the PEC members, the other participants of the electoral process in relevant PECs and registered in PEC logs as witnesses; 4) to enclose the evidence concerning the violations recorded by the observers in the polling stations located in the territories of the relevant TECs on the
TEC 12 - 14.04.2017 TEC 15 - 13.04.2017 TEC 16 - 18.04.2017 TEC 19 - 18.04.2017 TEC 24 - 13.04.2017 TEC 29 - 14.04.2017 TEC 33 - 14.04.2017 TEC 34 - 18.04.2017 TEC 35 - 14.04.2017 TEC 37 - 12.04.2017 TEC 38 - 15.05.2017 (this decision became available only on May 12, 2017, when the TEC 38 sent its decisions via ordinary mail in response to our written request).
63 electronic carrier with the case materials and to examine them.113 All of these motions were declined without any good reason. Moreover, all of the motions were declined at the start of the examination of the appeal against each TEC.
The examination of the appeals against TEC decisions by the CEC was of a purely formal nature. It could not be called an examination at all. During the sessions the CEC was merely reading out the drafts of decisions and adopting them unanimously. All of the statements and clarifications made by the representatives of observers during sessions were neglected. In exceptional cases the CEC invalidated certain parts of TEC decisions114 (the CEC decisions were adopted on 6 May concerning TEC no 8, on May 4 concerning TEC 22 and on May 6 concerning TEC 7). However, when they went back to TECs, the latter rejected them on identical grounds, while the CEC rejected the appeals submitted against them.
In one case the decision of the CEC adopted at the session had a different concluding part than that posted on its website later.115 In particular, it was decided during the session to invlidate the TEC decision adopted following the complaint of one of the observers. However, the examination of the posted decision revealed that the institution of the administrative proceedings on the basis of the appeal of that observer was denied. The overwhelming majority of the submitted appeals were rejected on the same grounds as those underlying the decisions of TECs. Certain clarifications were made by the CEC on the absence of facts of violations of the subjective rights of observers. In particular, the wording ‘the observation on the violation/ violations was not registered in the PEC log’ was conveniently interpreted by the CEC as proof of failure by the observer to put forward such a demand. That very same unlawful interpretation formed the basis of the CEC decisions on refusal to institute administrative proceedings.
In actual fact, the wording ‘the observation on the violation/violations was not
113 Evidence concerning the territorial electoral commissions was submitted on two CDs. 114 According to May 4, 2017 decision No. 208-A of the Central Electoral Commission, the decision of TEC 22 No 7-A was annulled. The decision of the TEC 7 No. 11-A, as well as the decision of TEC 8 No. 8-A, 9-A and 10-A were also annulled partially, according to May 6, 2017 decisions of the CEC No. 224-A, 218-A, 219-A and 220-A. According to the CEC, all these decisions were annulled as the respective TECs had violated Article 47 of the Electoral Code and would have examined the relevant parts of the case. 115 May 2, 2017 decision of the CEC No. 200-A.
64 registered in the PEC log’ means that in each and every case the observer demanded from the PEC chairperson that his/her observation be included in the log and this demand was not granted after it had been made. Otherwise, the fact of non-inclusion of the observation would not have been stressed, be regarded as a violation of the observer’s right and challenged. Moreover, in a number of cases PECs gave a diametrically opposite meaning to this phrase, assessing it as a fact proving that the observer had demanded inclusion of his/her observation into the PEC log and proof of violation of his/her right. In two cases that very same wording in complaints submitted to PECs resulted in TECs applying to the CEC with a motion to annul the accreditation certificates of PEC chairpersons (in polling stations 26/38 and 26/42). Moreover, the grounds for the decision no 26-A of TEC no 26 dated 07.04.2017 was exclusively that same wording and the actual absence of observations in PEC logs. Furthermore, that same wording in the complaints submitted to TEC no 7 stimulated the TEC to make inquiries to PEC chairpersons on the violation of observers’ rights. In addition to this, when this reason for dismissing a complaint was first read out in the CEC session on 2 May,116 the observers’ representatives made statements regarding the fact that in all cases when observers reported violations they also applied to PEC chairpersons for inclusion of their observations into PEC logs, which was not granted. These statements too were ignored by the CEC, which failed to mention these statements in any of its decisions. Moreover, the CEC applied double standards given the fact that in one case it interpreted the wording ‘the observation on the violation/violations was not included in the PEC log’ as a result of the exercise by an observer of his/her rights, while in another case when the observation of an observer was not included in the PEC log, the CEC ruled that such a demand had never been made by an observer.
The decisions adopted by the CEC on 2, 4 and 6 May were publicized in the CEC website on the second day of their adoption in a situation when the law prescribes a three-day period for appealing these decisions counted from the moment the decision is pronounced in the CEC session. Although this resulted in even more limited period of appeal, the CEC decisions were nevertheless appealed to the RA Administrative Court. The number of complaints submitted to the RA Administrative Court was thus 96.
116 Apart from TEC 9, in the course of session in which the observers’ representative gave clarifiations which, however, were not reflected in the adopted decisions.
65 3.1.10. On the Claims Submitted to the Administrative Court
The Citizen Observer Initiative filed 96 claims with the RA Administrative Court, 65 out of which were declared admissible by the court. 28 appeals were submitted to the Administrative Appeal Court concerning 28 cases, 13 out of which were granted. 5 of the appeals were brought against the decisions on the court fee to be paid. Three of the appeals were declared inadmissible. Cassation appeals were filed against them. Meanwhile the Administrative Appeal Court granted 20 of the COI appeals.
3.1.11. On Protection of the Rights of the “Journalits’ Club “Asparez” ” as a Media Outlet
The “Journalists’ Club “Asparez” ” had applied to the Central Electoral Commission for accreditation of 1000 (one thousand) representatives of two media outlets founded by “Asparez” (“Asparez” daily founded in 2011 and “asparez.am” news website founded in 2004) in order to be able to cover the parliamentary elections to be held on April 2, 2017. The CEC rejected the application of the “Journalists’ Club “Asparez”” on March 11, 2017 by its Decision No. 90-A. The decision of the CEC was based on paragraphs 1 and 2 of the Article 31’s Part 8 of the Electoral Code. The legal team of the Citizen Observer Initiative, considering that these restrictions do not comply with Articles 1, 2, 3, 5, 7, 42, 78, 80 and 81 of the RA Constitution, Article 10 of the European Convention on Human Rights, and do not reflect the principles of proportionality of restriction, legal certainty, inviolability of the essence of the fundamental rights, disputed the CEC decision before the RA Administrative Court (administrative case VD/2506/05/17). However, the Administrative Court rejected the claim on March 29, 2017. Having the aim to protect the right to freedom of expression envisaged by the RA Constitution and ECHR, applications were filed with the RA Constitutional Court and the European Court of Human Rights. By its Decision dated 26.12.2017 the Constitutional Court ruled on the application submitted on behalf of the ‘Journalists Club ‘Asparez’’ that the wording ‘only one mass media outlet and not more than 50 representatives of this media outlet’ in the second sentence of Sub-paragraph 2 of Paragraph 8 of Article 31 of the RA Electoral Code contradicted Articles 42, 52(2), 75, 78, 79, 80 and 81(2) and was is therefore invalid.
66 3.1.12. On the Actions Taken by the Bodies in Charge of Criminal Prosecution / The Law Enforcement
In response to the inquiry made by the NGO Europe in Law Association the RA General Prosecutor’s Office informed on 11.09.2017 that with a view to servicing the 02.04.2017 parliamentary elections the Task Force established within the RA Prosecutor’s Office checked the media publications and the reports received by the police stations throughout the country on 923 electoral violations.
Of these 923 reports 68 were merged with ‘materials prepared’ on the basis of the media publications and police reports about the same incidents and their fate was determined jointly. Of the remaining 855 reports the law enforcement bodies refused to institute proceedings in 835 cases. 7 complaints was taken against the decisions not to institute criminal proceedings, which were not granted by the supervising prosecutor. In 2 cases complaints were taken to the court.
In 20 cases criminal proceedings were instituted117, of which 1 was merged with another criminal case at the stage of investigation, in 6 cases the proceedings were discontinued. In 1 case the file was referred to the court with a motion to apply coercive measures of medical nature to the defendants, 12 criminal cases regarding 13 defendants were referred to the court along with the indictment.
3.1.13. On the Application Submitted to the RA Constitutional Court:
An application was submitted to the RA Constitutional Court on behalf of monitoring organisations, observers and a number of Armenian citizens on 14 April disputing the results of April 2, 2017 parliamentary elections. It stems from Articles 3 and 48 of the RA Constitution, and from Article 3 of Protocol 1 of the ECHR, as well as from the interpretation of Article 74 of
117 Articles 34-153 (attempt at voting more than once or instead of another person), 154 (violation of the secrecy of the vote), 149 (obstruction of the rights of media, observers) and 154.2(2) (giving a bribe to voters or interference with the exercise of the free will of the voter by candidates, parties, (party alliances), referendum campaign initiatives).
67 the RA Law “On Constitutional Court” that any person, who has the right to elect a legislative body must have an effective remedy for the protection of this right. The violations and irregularities registered during elections can directly influence the vote of every single voter (the exercise of every citizen’s electoral right in general). Therefore, the deprivation of the right to challenge the electoral results for everyone, including voters, observers and monitoring organisations will result in the elimination of an effective remedy in case of a violation of this right and, subsequently, violation of the right to free elections foreseen by Article 3 of the ECHR’s Protocol 1, as well as of Article 2 of the RA Constitution. Based on the above, the applicants insisted that persons having submitted the application, were eligible to apply to the Constitutional Court of the Republic of Armenia in order to challenge the results of the parliamentary elections, within the framework of the direct action of the provisions of Article 2 of the RA Constitution, Article 3 of Protocol 1 to the ECHR, as well as within the framework of the interpretation consistent with the provisions of Article 74 of the RA Law on the Constitutional Court, Articles 3 and 48 of the Constitution of the Republic of Armenia. According to the applicants, the only instance, where the exercise of the protection of this right can be ensured, is the Constitutional Court. However, the application was returned without examination. This was explained by the application having been filed by parties not having the legal standing to do so. An appeal was submitted against this decision to the President of the RA Constitutional Court, which was also rejected for similar reasons.
3.1.14. On the Electoral Disputes Initiated by the OrganiSations Participating in Elections Concerning the Elections and the Electoral Results
Within the framework of April 2, 2017 parliamentary elections, electoral disputes were initiated by the “Yelq,” “ORO” and “ANC-APP” blocks of parties. On March 23, 2017 the “Yelq” alliance of parties applied to the CEC asking to apply to the court with a motion to invalidate the registration of Arakel Movsisyan, an MP candidate from the RPA. The CEC adopted its decision No. 135-A on March 25, 2017, by which it rejected the motion on the pretext that according to the CEC, there was no justification or evidence proving that the violation committed by Arakel Movsisyan might have had an impact on the electoral results. On March 28, 2017 the “Yelq” alliance submitted a claim to the RA Administrative Court via ordinary mail demanding annulment of the decision of the CEC No. 135-A and invalidating of the registration of the candidate MP
68 A. Movsisyan. According to April 1, 2017 decision of the Administrative Court the proceedings of the case were terminated. On March 28, 2017 the “Yelq” alliance motioned the Central Electoral Commission to invalidate the registration of the list of the Republican Party. During the examination of the application the statements of the school principals118 (hereinafter: Statements) were examined. The CEC admitted that there had been two cases of influence on the teachers and parents of students (Khoznavar and Gyumri). On March 31, 2017 the CEC publicized its decision No. 146- A, by which it rejected the application of ‘Yelq’. On April 1, 2017 a complaint was filed by ‘Yelq’ with the Administrative Court with a request to annul the decision of the CEC No. 146-A and invalidate the registration of the Republican Party. On April 4, 2017 the “ORO” block of parties motioned the CEC, demanding that the fingerprints obtained during the electronic registration of voters in the polling stations be united in a single database and subjected to a comparative analysis with direct involvement of the OSCE and its specialists in order to determine whether there are any matching fingerprints. On April 8, 2017 the CEC publicized its decision No. 157-A, by which it rejected ORO’s motion. On April 11, 2017 a complaint was lodged with the Administrative Court against the decision No. 157-A, which was declared admissible on the same day (administrative case No. VD//3175/05/17). By its April 14, 2017 decision the Administrative Court rejected ORO’s complaint. The results of the elections were disputed only by the “ANC-APP” block of parties, which submitted relevant complaints to both the Central Electoral Commission and the Constitutional Court. The Constitutional Court pronounced its decision concerning the dispute over the electoral results on April 28, 2017 (SDO-1364).
118 The CEC acquired documents entitled “Statements,” which it attributed to the principals involved in the controversial recording. There is no evidence among the materials of the administrative proceedings proving that the identity of the authors of the statements has been verified. There is no document concerning the status of the authors of the statements, there is no explanation of who, where and when made a decision to take statements, how the authors of statements were notified about that, how they appeared among the materials of the case instituted on the basis of the application of ORO bloc of parties, why the same documents (originals) are the part of the materials of two different administrative proceedings and are in the folder of the 2nd administrative case.
69 3.1.15. April 28, 2017 Decision of the Constitunional Court
Although the RA Constitutional Court upheld the decision No. 163-A of the Central Electoral Commission “On Summarizing the Results of the April 2, 2017 Parliamentary Elections,” it, however, issued a ruling that was important in the light of some of the aforementioned problems of electoral legislation. The RA Constitutional Court also stressed the concerns expressed by the applicant, as well as international and domestic observation missions. The RA Constitutional Court ruled that the primary objective of the Armenian authorities is to overcome the concerns expressed by international and domestic observation missions. The manifestations of political corruption in electoral processes were of particular concern in this regard. According to the Court, the elimination of political corruption has to become a priority issue from the point of view of state policy and the country’s agenda on strengthening legal security. The solution of the problem demands a complex approach, including through further improvement of the RA Electoral Code and the electoral processes, which will make it possible to overcome the legal risks of possible manifestation of political corruption in electoral processes. At the same time, the RA Constitutional Court found that the radical solution of the problem requires implementation of more active and consistent steps in order to overcome the coalescence of the economic, administrative and political potential, to bring the “employer-employee” relations to a new qualitative level corresponding to the principles of the rule of law, to make employees fully and legally protected persons in relations with their employers, to overcome the possibility of merger of political and business interests in all the stages of the electoral process. The RA Constitutional Court, in particular, referred to its decision No. SDO- 703 adopted on June 10, 2007, decisions No. SDO-736 adopted on March 8, 2008 and decision No. SDO-1077 adopted on March 14, 2013, according to which the provision of legislative and organisational guarantees for the supremacy of the political interests of the society is a priority issue for a rule of law State. This “... will exclude any possibility of immediate combination of political and business interests in the process of formation of representative bodies having a primary mandate.” The Court reaffirmed that the solution of this problem continues to be urgent for Armenia’s political system, also requiring a clearer legislative regulation.
70 The Constitutional Court further ruled that the concerns expressed by the applicant and observation missions concerning the cases of open voting, group voting, controlled voting, and presence of people not authorized to be present at polling stations, as well as the cases of pressure by public officials or private companies, merit a serious attention. The Court also found equally important the initiation of the process of electoral rights protection in the manner prescribed by law in all such cases, which will also create constitutional legal and necessary prerequisites for effective examination and evaluation of the electoral results in the Constitutional Court. The Constitutional Court further ruled that even if the cases submitted by the applicant were not considered credible, they still diminished public confidence in electoral and democratization processes consistently initiated in the country as a result of constitutional reforms. Therefore, no electoral offense should be neglected. The problem must be addressed with a view to its elimination, the inevitability of liability envisaged by law for the offenders and overcoming of the possible speculations concerning the mentioned. Based on the findings of the case, the Constitutional Court also stated that civil society institutions had been particularly consistent in the process of disclosure of the problems of electoral processes and the formation of public intolerance towards them. Only owing to them and the media it became possible to reveal certain gaps and problems still existing in the electoral process in the Republic of Armenia. The Constitutional Court also found that although the RA Electoral Code was adopted in a broad political consensus, actually receiving the votes of more than 3/4 of the total number of MPs, however, certain provisions of the Code do not fully implement the constitutional requirement of the principle of legal certainty and may cause serious arbitrariness. Particularly, it referred to insufficient clarity concerning the process of annulment of voting results in an electoral precinct; the fact of election of the National Assembly, clarification of the deadlines for the transfer of mandates to MPs and holding of the first session, which has become a subject of discretionary interpretation; exclusion of possible manifestations of political arbitrariness regarding the acquisition of mandates by MPs on the basis of party national and territorial candidate lists. There is also a need for further improvement of the system of the administrative proceedings and the process of examination of the complaints by territorial electoral commissions.
71 4. CONCLUSION
The formation, expression and due recording of the citizens’ free will, as well as the right to proper protection of the citizens’ electoral rights were not fulfilled properly during 2 April 2017 parliamentary elections in Armenia.
4.1. Amendments to the Electoral Legislation and Practice, the Effectiveness Thereof
Even a cursory examination of the problems of the electoral legislation and practice demonstrate lack of state policy and political will in the direction of fulfilment of the electoral rights as the cornerstone of a democratic society. Amendments to the electoral legislation, especially those that are considered essential are without practically any exception made during such a short period preceding the elections that the chances of adequate teaching and training of the amended electoral law and procedures to the institutions enforcing the law as well as to voters are considerably reduced, which results in serious practical problems. In the local reality where there is limited participation of non-ruling parties and civil society, the legislative amendments are made from the perspective of the state bodies and the ruling party only.
At the same time, when amendments that at first sight seem positive are made, their positive effect on the electoral process is neutralized by more latent amendments that are invisible to the broad public. Some amendments are obviously aimed at correcting the shortcomings of electoral commissions and further complication of the electoral complaints procedure in order to exclude the possible complaints and/or reduce significantly their numbers.
Despite the fact that the government advertised widely the new Electoral Code and the fact that certain amendments were made following the recommendations of opposition parties and civil society representatives, there are still serious problems in the new Electoral Code. Even though a number of NGOs, the professional community and the opposition powers continued voicing concerns about them and offering solutions, they were all ignored.
72 On the Electoral System. The introduction of the system of stable majority, the second round of parliamentary elections and the bonus system foreseen in the framework of this system rathen then contributing to the consolidation of democracy, limit considerably any political competition.
The introduction of territorial lists of nominees (the rating lists) distorted any attempt at building a truly proportional system, preventing any real competition between political programmes and parties and contributing greatly to unlimited use of the financial, administrative and other influences of the members of the ruling party.
Changes (elimination) of the limitations for politicians and certain public servants in taking part in the election campaign contributed to a wider and more effective abuse of the administrative resources predominantly in favour of the ruling Republican party.
On the Level of Maturity of the Political System and Political Parties. In conformity with the CEC Decision no 163-A dated 9 April 2017, 23 of the elected members of parliament - almost ¼-ը119- recused themselves from their seats. According to the media publications in the period preceding the CEC decision, 35 MPs recused themselves. According to another media publication, 12 MPs denied that they had recused themselves. This testifies to the fact that there had been pressure on them or that false statements had been submitted on their behalf or that the latter lacked any political responsibility and did not act as a political factor. At the same time, such a scale of this phenomenon demonstrates lack of effectiveness of democratic institutes inside certain political parties.
This concern was also reflected in the Decision of the RA Constitutional Court no CCD-1364 dated 28.04.2017 (see paragraph 13).
On the Limitations in the Area of Public Oversight. Due to limitations applied to the mass media, the NGO “Journaists’ Club ‘Asparez’”, which disseminates two media outlets – Asparez Daily (since 2011) and asparez.am (since 2004), was deprived of the opportunity to have its
119 http://res.elections.am/images/dec/17.201_A.pdf
73 1000 representatives accredited and to monitor the parliamentary elections through them (see section 3.1.11 of this report).
At the same time, the new powers of PECs in terms if restricting the rights of observers and media representatives in polling stations were problematic.
4.2. Merger of State Functions and Party Interests/ Use of the Administrative Resources to the Advantage of One Party
In view of the fact that the Republican Party of Armenia has at its disposal all state leverage, it used it in the interests of the party in connection with the elections to the National Assembly. The Republican party has concentrated almost all the executive power (starting from the President) and the legislature (simple majority).
The primary and most dangerous obstacle in the way to consolidating democracy in Armenia is the stable trend of establishing a one-party system. A necessary precondition and an indicator of this phenomenon is the merger of party and state functions, which was more explicit and obvious during these elections.
4.3. Violations of the Formation and Expression of the Free Will of Voters (Oversight over the Participation in and the Process of Voting) It is well possible that the new public oversight mechanisms enshrined in the new Electoral Code, in particular the legislative requirement of making the signed voter lists publicly available contributed to the reduction of such gross violations as intimidation and violence on either the participants or the parties engaged in public oversight over the electoral processes (media representatives, observers, etc.), ballot box stuffing, etc. However, their actual impact, as well as their shortcomings and gaps are not fully detected due to lack of access to the VAD data and absence of a comprehensive examination of the electronic voter register and the signed voter lists.
Violations in the Period Preceding the E-Day / the Election Campaign /, Abuse of the Administratve Resources. /Section 2.4.1. /
74 In the period preceding the E-day, including the period of election campaign there were numerous reports of a wide-scale use of the administrative resources and vote buying.
There were registered incidents of involvement of state and community resources, including high-ranking and other public officials, as well as public sector employees such as school principals and headmasters of kindergartens in the election campaign predominantly in favour of the Republic Party.
Included among the high-ranking officials actively engaged in election campaign in favour of the RPA were Vigen Sargsyan, the RA Minister of Defence; Taron Margaryan, Mayor of Yerevan and Karen Karapetyan, the Prime Minister, while Armenia’s President Serzh Sargsyan engaged in election campaign in favour of the RPA in the armed forces of Armenia through official meetings.
The influence of the public officials employed in the bodies of public administration and local self-government in the period of election campaign was combined with the collection of the personal data of voters, including their passport data. They were then handed over to the bodies of regional administration and local self-government, the central headquarters of the RPA, as well as the headquarters of the candidates nominated by the RPA.
The demonstrates that a systematic and centralized mechanism was in operation with the involvement of the employees of the bodies of public administration and local self-government, and the influence of this resource was used to make lists of potential voters for and disposed by the RPA. This resulted in a factual influence and oversight over the participation of these voters in voting, as well as over the formation and expression of their will.
The Advantage and the Centralisation of the Financial Resources
Another noteworthy circumstance is that the financial resources of the election fund of the ruling Republican Pary exceeded for multiple times those of the other parties’.
According to the declared data, the election fund of the Republican Party was the biggest reaching 400 million AMD, while the total of the rest of the parties and party alliances together reached 481 million AMD.120
120 http://res.elections.am/images/audit/02.04.17m.pdf
75 Although this is not a violation by law nor an abuse of the administrative resources, it is a clear indicator that the fact that the RPA has been in power for many years has spurred processes, which resulted in incomparable advantages of this party over the rest in terms also of financial resources.
This is a clear sign of imperfection and ineffectiveness in the areas of political pluralism, access to resources, election financing and equal competition, as well as the system and mechanisms of state support to political parties or absence of any public policy on these issues.
Incidents of Vote Buying.
In conformity with various sources (the mass media publications, observations of the participants of election campaign rallies) in the period of election campaign there were widespread, continuous and systemic incidents of vote- buying as testified also by the amount of the agreed bribe – 10 000 AMD.
There were numerous reports on such incidents made by the parties running for elections, their candidates, proxies, observers and the media. However, no effective action was taken on these reports either by the bodies in charge of election administration or the bodies of public prosecution. Moreover, not only were they not condemned by high-ranking officials and the high-level politicians within the RPA, they were also encouraged and justified or some even made statements about inability of the state to fight against such crimes, as a result of which in an environment of impunity these cases became even more widespread taking more explicit forms in the period preceding the E-day and especially on the voting day.
The RA Constitutional Court touched upon these issues in its Decision no CCD-1364 dated 28.04.2017 by declaring the necessity to eliminate the incidents of political corruption in electoral processes as a priority on the agenda of the strengthening of the State’s legal security.
Influence on the Voter Turnour, Violations of the Secrecy of the Vote and Other Violations.
The violations of the right to free elections as enshrined in Articles 2 and 7 of the RA Constitution, were made in accordance with a well-planned, coordinated and continuous scheme of actions that like a chain started from the stage of formation of the voters’ will and ended with the act of voting of
76 each voter, of which the first part was the impact on the formation of the voters’ will (abuse of the administrative resources, vote-buying, threats and intimidation, including influence conditioned by labour relations between employers and employees), while the rest were the means to ensure the effectiveness thereof (transporting to polling stations with a view to voting; control over the voting in a polling station by means of directed voting and different other ways of violating the right to secrecy of the vote). As a final and effective component of this means – the final tier in the chain – direct control over the process of voting was exercised in voting rooms or a highly convincing illusion of such a control by means of the people “in charge”, including various observers was created. As a result of the aforementioned when there were no direct violations of the secrecy of the vote, the voters were convinced that the whole polling station was under the absolute and effective control and that their process of voting was also controlled.
In fact there was a unified and centralized system of influence and control over the formation and expression of the voters’ free will, including by means of the involvement of the bodies of public administration and local self-government. The aim of this arrangement was first to have an impact on the free formation of the voters’ will and then by means of violation of the constitutional guarantees exercise control over the expression of the voters’ free will. These incidents were of a widespread nature and were either ignored by electoral commissions or permitted by the latter. Another sign of influence on the participation and free will of the voters is the very high percentage of voting in mental hospitals, penitentiaries and by the military, as well as the outcome of their vote (section 2.4.8.).
No steps were taken to find out and assess the degree and scale of impact of these phenomena. The related information and reports were not duly examined or assessed by the bodies of election administration. Moreover, different public officials qualified these actions as not prohibited by law.
The impact of vote buying, pressure on the public sector employees and as conditioned by labour relations in the private sector on the elections and, as a consequence, the low level of public trust was obvious to the observers within the international OSCE/ODIHR mission (section 2.4.1. of the report).
The Constitutional Court also raised concerns about the need to exclude any impact on the will of voters by its Decision no CCD-1364 (paragraphs 11
77 and 13) dated 28.042017.121 It stated that there was a need for more active and consistent steps to overcome the merger of economic, administrative and political potential, as well as maintaining employer-employee relations in conformity with the principles of the rule of law in a democratic society.
4.4. On the Innovations Introduced with the Adoption of the New Electoral Code
On the Publication of the Signed Voter Lists.
The new regulation of the 20.10.2016 Electoral Code whereby the signed voter lists were to be scanned and posted on the CEC website after voting, was an important precondition in terms of preventing multiple voting and voting instead of others. However, in practice it became evident that it was a necessary but not sufficient precondition given the fact that when the signed voter lists are not searchable their analysis and use in terms of detection of violations is so resource-consuming that it essentially renders their timely and effective use impracticable.
Apart from this, criminal liability in cases of giving a false statement regarding voting instead of another or enclosing a statement with a false signature with the report when committed both intentionally and negligently was an explicit restriction on the possibility to make reports on this kind of electoral fraud neutralising essentially the positive impact of the publication of the signed voter lists from the perspective of their public oversight.
Problems Connected with the Voter Register and Voter Lists.
In the absence of any possibility for checking the electronic voter lists, the data of the actual voters and those entered into the VADs, the aim of raising public trust in the electoral process was not ensured (sections 2.4.3 and 2.4.4 of the report).
The COI observers recorded incidents of breakdown of the technical
121 http://www.concourt.am/armenian/decisions/common/2017/pdf/sdv-1364.pdf (SDO- 1364)
78 equipment, incompliances between the electronic voter lists and the signed voter lists. The number of incidents when the voter data were manually input into the VAD was very high – 229.757 (according to the official CEC data).
As a result of the study of the COI analytical group in the area of detection of the possible risks including the study of the signed voter lists there was also a very high number of repeated names. The comparison of the final voter lists published by the RA Police during the constitutional referendum of 6.12.2015 and the parliamentary elections of 2.04.2017 revealed incompliamce of about 106.000 addresses.
No audit was conducted of the voter ID cards and the passport database contrary to what was foreseen by the amendments to the Electoral Code dated 20.10.2016, which was of utmost importance in terms of raising public trust in the introduced VADs.
Another factor that had a significant impact on the level of public trust in electoral processes was the refusal to make a comparative analysis of the fingerprints of the voters by the CEC and the Administrative Court with a view to detecting the potential overlaps (section 3.1.14 of the report).
Cameras were installed in only 1500 polling stations. Moreover, it was decided not to do voice-recording or transmission of voice, which reduced considerably the effectiveness and evidential value of this tool. The access to the videomaterials was another problematic issue reducing the level of public trust in electoral processes. The videotransmission after the summary of the results of the vote was stopped and the footage was no longer available to the wider public. Neither was it sufficiently available to those parties that were entitled to access to it by law. Considering the international best practices (where there is video and audiorecording of the electoral processes) it is of utmost importance to ensure access to the videomaterials in the period following the elections from the perspective of further improvement of the electoral processes.
79 4.5. On the Institute of Complaints
The Procedures.
There are serious obstacles and restrictions in the way to protecting the electoral rights, which makes any effective exercise, protection and restoring of the electoral rights even more complicated or impossible. The nature of these restrictions, as well as the absence of a legitimate aim for introducing them lead to the sole conclusion that their true goal was reducing the possibilities and number of complaints by means of complicating significantly the complaints procedures.
Due to arbitrary application of the law by the bodies of election administration there is no effective and useful means for protecting electoral rights.
Access to Court.
The procedures and timeframes for applying to court for the resolution of electoral disputes (access to court) were also restricted. A serious restriction to access to court is the arbitrary interpretation of the RA Law on Court Fees and calculation of such high levels of court fees that render the right to judicial protection in election-related cases simply illusory.
Although the deadlines for submitting complaints to TECs were extended somehow, the introduction of a number of other procedural regulations prevented their effectiveness in practice (section 3 of the report).
All of the above facts demonstrate that the competent electoral commissions either refused or avoided to examine election-related complaints within the prescribed timeframes. They also reveal the utter ineffectiveness of the system of complaints and lack of independence of electoral commissions. This is a clear sign of the fact that electoral commissions are not an effective instance for the protection of the electoral rights of the citizens, while the artificial delays in the adoption of decisions on the submitted complaints testify to the fact that the CEC was determined to prevent the receipt and examination of these complaints prior to the summary of the results of the vote and determination not to make it possible for citizens to enjoy the right to protection of their voting rights.
80 4.6. On the System of Electoral Commissions in Charge of Election Administration and the Role of the CEC
Facts of Lack of Autonomy and Independence of TECs, as well as Inadequate Qualifications Thereof.
The low level of qualifications of TEC members continues to be problematic.
In the period following the parliamentary elections of 2 April 2017, the COI registered incidents of interference by the CEC with TEC activities and lack of independence of TECs, as well as facts of adoption of TEC decisions from a single center (for example, the fact of appointment of the date and time of TEC sessions by the CEC as admitted by a number of the TEC members).
These problems result inevitably in a situation in which there is a clear lack of autonomy and independence in the three-tier system of electoral commissions. This system has one center of governance, while the rest of the commissions – TECs and PECs – act as performers and are totally deprived of any real powers for autonomous and independent decisions. This situation inevitably results in the elimination of the right to an effective remedy. In this situation appeals to higher commissions cannot be considered as an effective remedy either.
The low level of public trust in elections is conditioned by mistrust in electoral commissions, and lack of independence and impartiality thereof.
The ineffectiveness of electoral commissions in the area of prevention, detection and effective examination of electoral violations is also reflected in the decisions of the RA Constitutional Court.
4.7. The Observation Missions
The Domestic Observation Missions.
Many of the observation organisations accredited for the parliamentary elections of 2 April 2017 had not been previously known for any activity directed at human rights protection or promotion of democracy, which questions their goal of conducting election monitoring. Many observers from
81 these organisations were distinguished for their efforts in directing the voters and exercising control over the process of voting and enjoyed unequivocal acquiescence of electoral commissions. Therefore, the impartiality of observation missions and detection of the organisations and observers that pursue other objectives under the guise of an observer continues to be problematic.
Of the 49 observation organisations with their 28.021 observers it was only the organisations and observers that acted on behalf of the Citizen Observer Initiative and the Independent Observer Alliance that were most active and registered the most number of violations, contributed to their publicity and at the same time engaged in the protection of electoral rights (both subjective and objective), including by means of initiating legal processes. It was the violations observed and publicized by these observation missions that served as a basis for the election-related disputes initiated by the political parties that ran for elections. These facts were also reflected in the Decision of the RA Constitutional Court no CCD-1364 dated 28.04.2017122 (paragraphs 11 and 12), stressing inter alia the role of the Citizen Observer Initiative.
International Observation Missions.
It is also noteworthy that the CEC refused to send invitations to a number of international observation organisations, including the EPDE - European Platform for Democratic Elections and the ENEMO – European Network of Elections Monitoring Organisations, which is a direct indicator of the fact that the Armenian government restricts broader public oversight over elections, which reflects negatively upon the international reputation of the Republic of Armenia.
On the Organisational and Methodological Aspects of the COI Observation Mission.
Effectiveness The Citizen Observer Initiative is a platform created with a view to ensuring more effective monitoring of electoral processes and has as its goal ensuring broader and closer cooperation between observation organisations and the
122 http://www.concourt.am/armenian/decisions/common/2017/pdf/sdv-1364.pdf (CCD- 1364, para 12)
82 mass media. The COI enables also a deployment of a team of observers in each polling station, which increases considerably the effectiveness of the observation effort. Included among the goals of the COI is ensuring a broader, more experienced and professional community of observers, a more in depth and consistent analyisis and study of the problems of electoral legislation and practice, as well as formation of a broader informational platform.
Problems.
Included among the key problems are those of selection and training of a dedicated and qualified pool of observers at the time of large-scale observation efforts – the issue of human resources, which depends largely on timelimits.
The lack of financial resources is conditioned by the fact that in the period between elections no grants are awarded for election projects, which has a negative impact on continued improvement of the capacities of the observation missions.
The financial assistance is granted mainly in the form of international grants in the short period preceding elections, which limits considerably the possibility of selecting and training qualified and dedicated observers.
In Summary.
It should be noted that the amendments to the Electoral Code and the rest of the steps taken failed to support the fulfilment of the right to free elections as prescribed by Article 2 of the Constitution and the enhancement of the guarantees of this right, as well as the goal of increasing public trust.
The parliamentary elections of 2 April 2017 revealed even more profound issues, which are a serious challenge for guaranteeing the power of people though free and fair elections, as well as the protection of electoral rights via effective examination of election-related disputes.
No progress has been made in the area of the foreseen processes of complaints and their practice. Their ineffectiveness, on the other hand, renders it impossible to legally resolve election-related disputes and the protection of electoral rights.
83 The electoral legislation comprises regulations that contradict the RA Constitution and the European Convention on Human Rights and does not comply with the principle of legal certainty. At the same time, the electoral legislation has serious gaps in the area of guarantees of equal, free and secret voting rights. Of concern are also the shortcomings of the legislative guarantees of the effective protection of electoral rights.
The effective control of the ruling party over all the branches of power was more than explicit entailing a dangerous merger of the state and party functions, which conditions completely the ineffectiveness of elections and examination of electoral violations, as well as the outcome of electoral disputes.
84 5. RECOMMENDATIONS
In order to fully exercise the right to universal, equal, free, secret and direct vote as enshrined in the Constitution and to establish a representative democracy via elections and formation of the public power by the people of Armenia it is necessary to achieve fundamental and comprehensive resolution of the above key problems, which is possible only if all the relevant stakeholders, including civil society get involved in the process through broad public consultations and wide public consensus.
It is necessary to ensure in depth discussion of the priority problems reflected in the Decision of the Constitutional Court no CCD-1364 dated 28.04.2017 and develop mechanisms for their full solution.
5.1. Ensuring Political Competition and Better Training for Party Proxies
In order to fully ensure true proportional representation, it is necessary to ensure competition between political parties and programmes preventing any possibility for the merger of political and business interests.
It is necessary to develop effective legislative solutions for the prevention of the use (abuse) of the state/administrative resources balancing them with effective and measured means of liability.
Parties need to make greater efforts in deepening the knowledge and skills of their proxies on electoral legislation and processes and strive for due organisation of the oversight over electoral processes.
85 5.2. On Electoral Commissions and Election Administration
It is necessary to foresee such a system of solutions, which will ensure:
• A high level of transparency in the formation of electoral commissions at all levels and broader channels of involvement of independent people and experts in these commissions;
• Establishing an effective system of checks and balances in the three-tier system of electoral commissions, which will contribute to the real independence and autonomy of these commissions and prevent any interference with their activities;
• Ensuring such a system of commissions that will provide regular refreshment of their composition and exclude the negative aspects of their merger;
• Such a system of nomination and formation of the Central Electoral Commission that will ensure the possibility of nomination and election of the broadest possible circle of candidates with the involvement of civil society representatives;
• Broader and more comprehensive mechanisms of effective and real public oversight over the activities of both TECs and the CEC;
• Legislative guarantees for balancing the rights of all the stakeholders of electoral processes and exclude the involvement of the people with tarnished reputation for electoral violations in electoral commissions.
5.3. Accurate Voter Lists
Introduce an effective mechanism for checking compliance between the election register and the population register, which will be available to all the stakeholders of electoral processes. This will exclude any possibility for their exaggeration.
Differentiate between the lists of voters in Armenia and absent from Armenia
86 on the E-day (at least as of the moment of publicizing the verified voter lists in the period preceding the E-Day as defined by the Electoral Code).
Introduce a searchable system of signed voter lists, which will enable the conduct of the relevant checks within limited timeframes possible, the results of which will be used for summarisation of the results of elections.
Ensure availability of the data input into the VADs and a mechanism of oversight over these data that will be effective and available to all the parties involved in the electoral process.
5.4. Broader Rights for Observers
It is necessary to lift the regulations introduced in the Electoral Code for restricting the rights of observers and media representatives and exclude any possibility of discrimination.
The powers to invite international organisations must be given also to non- governmental organisations rather than state institutions only.
5.5. Ensuring Effectiveness of Complaints Proccesses
In order to achieve any meaningful protection of electoral rights, effective examination of election-related disputes and fair assessment of any influences on the results of elections, it is necessary to take comprehensive and systemic measures at both legislative and practical levels. Therefore, it is necessary to:
▪ Analyse and review the problems of guaranteeing and ensuring the available and effective measures for the protection of electoral rights by the election administration bodies, and the courts, including the Constitutional Court;
▪ Review the legislative procedures and timeframes for submitting election-related complaints, the procedures and timeframes for examination thereof in order to offer the necessary guarantees for the effective examination of these complaints;
87 ▪ Confer the right to bring complaints on violations of objective electoral rights to voters and observation organisations;
▪ Foresee a broader circle of parties having a standing to bring election-related complaints, including by conferring on observation organisations the right to bring complaints on behalf of their observers;
▪ Review and extend the deadlines for final summarisation of the results of elections with a view to ensuring effective protection of citizens’ electoral rights;
▪ Taking account of the specificities and timeframes of electoral disputes, eliminate to the extent possible the formal requirements foreseen for complaints excluding any restrictions conditioned by them and guarantee the right to apply for legal remedies for broader circle of stakeholders;
▪ Ensure communication and circulation of documentation with electoral commissions through official electronic means of communications.
5.6. General Measures
All of the registered violations and problems have to be included within the list of priorities and analysed in the light of electoral legislation and practice. The detected systemic problems have to be eliminated. In particular:
▪ Citizens have to be more aware of the role and significance of election observation, participate in the formation of a demand for the formation of a free and fair electoral system, which complies with international standards and assume certain personal responsibility for engaging in public oversight of electoral processes;
▪ International organisations need to review their approach and base their assessments of various pieces of electoral legislation in objective arguments refraining from rush conclusions and standard political texts.
88 Fund ed by the Europ ean Unio n
This publication has been produced with the assistance of the European Union. The contents of this publication are the sole responsibility of the Europe in Law Association NGO and can in no way be taken to reflect the views of the European Union. This Report was produced by the human rights organisation Europe in Law Association in the framework of the Citizen Observer Initiative following and on the basis of the observation mission carried out by Europe in Law Association, the Journalists’ Club ‘Asparez’ and Transparency International Anti-corruption Center.
The observation mission was carried out under the project ‘Public Oversight Over 2017 Parliamentary Elections’ funded by the European Union and co-funded by the National Endowment for Democracy, National Democratic Institute and the Embassy of the Kingdom of the Netherlands in Georgia.
The contents of this publication are the sole responsibility of the Europe in Law Association and can in no way be taken to reflect the views of the European Union, the National Endowment for Democracy, the National Democratic Institute and the Embassy of the Kingdom of the Netherlands in Georgia.
The Citizen Observer Initiative was founded in 2013 with a view to overseeing national and local elections and referenda in Armenia and their compliance with domestic law and the international standards of democracy. The website of the Citizen Observer Initiative is https://www.citizenobserver.am/
The website of the Europe in Law Association is http://ela.am
3 TABLE OF CONTENTS
LIST OF ACRONYMS ...... 6 EXECUTIVE SUMMARY ...... 7 INTRODUCTION ...... 9
1. ELECTORAL LEGISLATION ...... 11 1.1. The Process of Adoption of the New Electoral Code ...... 11 1.2. The Main Innovations and Issues of the New Electoral Code ...... 17
2. THE OBSERVATION MISSION ...... 22 2.1. The Observation Missions and Observers ...... 22 2.2. The Goals of the Observation Mission ...... 23 2.3. The Observation Mission and the Methodology Thereof ...... 24 2.4. The Results of the Observation ...... 27 2.4.1. The Election Campaign. (the Problems and Violations Registered in the Period Preceding the E-Day) ...... 28 2.4.2. Preparation for Voting ...... 33 2.4.3. The Voting ...... 34 2.4.4. Summarisation of the Results of the Vote ...... 39 2.4.5. Violations of General Nature ...... 41 2.4.6. Violations of Observers’ Subjective Rights ...... 41 2.4.7. Problems/Violations Observed in the Aermath of Voting ...... 42 2.4.8. Some Data Produced by the COI Analytical Team on the Basis of the Voter Lists ...... 44 2.4.9. Observation of TEC Activities ...... 45
3. ELECTION-RELATED COMPLAINTS ...... 47 3.1. Brief Summary of the Process of Complaints ...... 47 3.1.1. On the Legal Standing of the Observation Organisations and Observers ...... 48 3.1.2. On the Violations of Subjective Electoral Rights of Observers ...... 49 3.1.3. The Delivery of Complaints to TECs and the Process of their Handover ...... 50 3.1.4. Notices on TEC Sessions and Timelimits for Examining the Complaints ...... 51 3.1.5. Sessions and Decisions of TECs on the Submitted Complaints ...... 53 3.1.6. On Failure to Examine the Fact of Violations (or Parts Thereof) Raised by the Complaints by the Initiative of TECs ...... 59
4 3.1.7. On the Obstacles to the Right to Appeal the TEC Decisions ...... 60 3.1.8. The Participation and Interference of the CEC with the Activities of the PECs and TECs: Absence of Independence on the Part of TECs ...... 61 3.1.9. On the Complaints Submitted to the CEC and Examination Thereof ...... 62 3.1.10. On the Claims Submitted to the Administrative Court ...... 66 3.1.11. On Protection of the Rights of the “Journalits’ Club “Asparez”” as a Media Outlet ...... 66 3.1.12. On the Actions Taken by the Bodies in Charge of Criminal Prosecution/ The Law Enforcement ...... 67 3.1.13. On the Application Submitted to the RA Constitutional Court ...... 67 3.1.14. On the Electoral Disputes Initiated by the Organisations Participating in Elections Concerning the Elections and the Electoral Results ...... 68 3.1.15. April 28, 2017 Decision of the Constitunional Court ...... 70
4. CONCLUSION ...... 72 4.1. Amendments to the Electoral Legislation and Practice, the Effectiveness Thereof ...... 72 4.2. Merger of State Functions and Party Interests/ Use of the Administrative Resources to the Advantage of One Party ...... 74 4.3. Violations of the Formation and Expression of the Free Will of Voters (Oversight over the Participation in and the Process of Voting) ...... 74 4.4. On the Innovations Introduced with the Adoption of the New Electoral Code ...... 78 4.5. On the Institute of Complaints ...... 80 4.6. On the System of Electoral Commissions in Charge of Election Administration and the Role of the CEC ...... 81 4.7. The Observation Missions ...... 81
5. RECOMMENDATIONS ...... 85 5.1. Ensuring Political Competition ...... 85 5.2. On Electoral Commissions and Election Administration ...... 86 5.3. Accurate Voter Lists ...... 86 5.4. Broader Rights for Observers ...... 87 5.5. Ensuring Effectiveness of Complaints Proccesses ...... 87 5.6. General Measures ...... 88
5 LIST OF ACRONYMS
ANC Armenian National Congress APP Armenian Peoples’ Party ARF Armenian Revolutionary Federation CC Constitutional Court CEC Central Electoral Commission COI Citizen Observer Initiative EC Electoral Code ELA Europe in Law Association NGO HRD Human Rights Defender JCA Journalists’ Club ‘Asparez’ NGO NA National Assembly NGO Non-Governmental Organisation ODIHR Office for Democratic Institutions and Human Rights OSCE Organisation for Security and Co-operation in Europe PAP Prosperous Armenia Party PEC Precinct Electoral Commission RA Republic of Armenia RLP Rule of Law Party RPA Republican Party of Armenia TEC Territorial Electoral Commission TIAC Transparency International Anti-corruption Center NGO
6 EXECUTIVE SUMMARY
On 2 April 2017, parliamentary elections were held in Armenia. The territory of the State was divided into 13 constituencies, which, in their turn, were divided into territories apportioned to 38 territorial electoral commissions (hereinafter: TECs) where 2009 polling stations were formed. Four parties and five party alliances stood for elections. In total, the overall number of the proxies representing the parties and party alliances that stood for elections was 22.416. 49 non-governmental organisations monitored the elections with an overall number of observers reaching 28.021. The results of elections were disputed by one party alliance – ANC-APP. On 28.04.2017 the decision of the RA Constitutional Court (hereinafter also: the CC) was pronounced, which along with declaring the results of elections valid, also registered several important findings in the area of ensuring the Armenian citizens’ electoral rights and the development of the electoral system.
Three non-governmental organisations monitored the elections to the National Assembly (hereinafter also: the NA) of the Republic of Armenia in the framework of the Citizen Observer Initiative (hereinafter: the COI): Europe in Law Association NGO, Journalists’ Club ‘Asparez’ and Transparency International Anti-corruption Center. The aim of the COI is to monitor the national and local elections in Armenia and their compliance with domestic law and international standards of democracy.
The COI attracted 10 non-governmental organisations and 2972 individuals – both Armenian nationals and people from the Armenian diaspora – interested in having elections in line with international democratic standards in the process of oversight over the NA elections.
The COI conducted observation in all the 13 constituencies of Armenia (4 in the capital Yerevan and 9 in the regions of Armenia). The observation mission covered all the 38 TECs and 1522 polling stations located in the territory of 37 TECs (about 76% of all polling stations).
In the course of the observation mission observers submitted 1718 reports concerning electoral violations, of which 228 related to the preparation to voting, 919 –the process of voting, and 147 – the summary of the results of the vote. There were also 425 reports of violations of general nature.
7 Only 718 of these observations were registered in PEC logs. These violations comprised both repeat and continuing violations.
In total, 309 complaints were submitted to 37 TECs on the violations of observers’ subjective and general (objective) electoral rights registered by the COI observers and organisations. 127 appeals were then submitted to the Central Electoral Commission (hereinafter also: the CEC) and 96 complaints were submitted to the RA Administrative Court. An application contesting the election results was also submitted to the RA Constitutional Court. No complaints were submitted to TEC no 61:
The nature of the above violations, their interdependence and logic demonstrate that they are of a systemic and widespread/universal nature, while the response to them or, to be more correct, absence of any effective remedy in their regard by the bodies in charge of election administration – the electoral commissions, the law enforcement bodies and the judiciary - demonstrate that these state institutions are either incapable or unwilling to perform the functions conferred on them by law, which amounts to lack of independence.
The observation mission revealed systemic problems and violations in the electoral process, which have an essential impact on the exercise and the protection of the right to free and fair elections. These problems include but are not limited to ensuring free formation and expression of the voters’ will, ensuring the secrecy of the vote, use (abuse) of administrative resources, efficiency of the system of electoral commissions that are in charge of election administration, their accessibility, the institutes and safeguards of public oversight, as well as issues related to ineffectiveness of the mechanism of electoral disputes. In addition to this, a number of problems were revealed in the area of electoral legislation and law enforcement practice.
Theses problems are a serious obstacle to enforcing Article 2 of the RA Constitution, exercising the right to free elections and safeguarding the principles enshrined in Article 7 of the RA Constitution, undermining the free exercise of the people’s power by means of the 2017 parliamentary elections and giving rise, as a direct consequence, to widespread mistrust in elections and the electoral system.
1 Օbservation in the polling stations included in the district of TEC 6 was carried out by the Helsinki Committee of Armenia, and the results of monitoring of EC 6 were also posted on the website of the Citizen Observer Initiative.
8 INTRODUCTION
The elections to the NA held on 2 April 2017 were an event of a major significance for the State given the fact that they were the first national elections after the adoption of the constitutional amendments in 2015, as a result of which the system of governance was changed from a semi- presidential into a parliamentary Republic. The legal basis of the elections was the new Electoral Code (hereinafter: also the EC) and the procedures set up by the latter. A number of technological innovations in the area of voter registration were introduced by the Armenian government. The amendments to the Electoral Code passed on 20.10.2016 set forth the requirement of making the signed voter lists publicly available.
This report offers a factual, impartial and independent perspective in the assessment of the processes of the elections to the NA, reflecting the main findings of the observation mission, as well as the violations and problems observed and registered in the process of elections. On this basis the report then presents ELA’s conclusions and recommendations on the elections to the NA, which may act as a basis for rectifying the shortcomings of electoral law and practice and for overcoming the detected problems.
The target audience of the report includes:
● Citizens enjoying the right to vote: ▪ The general public, which essentially is both the main ‘commissioner’ and ‘beneficiary’ of any election observation mission; ▪ The public and political actors interested in the improvement of the electoral system of Armenia and intending to play an active part in the development of the relevant legal framework and application thereof.
● The State institutions: ▪ The institutions in charge of election administration, which are responsible for and play an important role in the due organisation of the electoral process and safeguarding of the electoral rights, as well as for carrying out an effective examination of the facts of electoral violations and, as a direct consequence, for raising public trust in electoral processes; ▪ The legislature and the executive, i.e. the NA and the Cabinet;
9 ▪ The bodies in charge of criminal prosecution, which by the powers conferred on them by the RA Constitution and legislation, are in charge of prevention, detection, effective examination of electoral violations, as well as ensuring inevitability of punishment for electoral offences; ▪ T he judiciary, which is in charge of the administration of justice in conformity with the Constitution and laws. ▪ T he international organisations, which support the advancement of democratic processes and human rights protection and need to have a comprehensive picture of the Armenian electoral processes, as well as the possible directions of improvement thereof.
The report comprises the following main sections:
● The section Electoral Legislation is a brief chronicle of the legislative amendments preceding the holding of the NA elections in three main subsections: the problems related to the system of parliamentary elections set forth by the Constitution, the process of adoption of the main document regulating the electoral process – the Electoral Code – and the related legal acts, as well as the brief outline of the main amendments to the legal acts regulating the electoral processes; ● The section Description of the Observation Mission details out the observation mission, including its goals, composition and methodology, as well as the obstacles lying in the way to the organisation thereof; ● The section Findings of the Observation Mission sets forth the electoral violations grouped according to their categories and subcategories, as well as the process of election-related complaints; ● The section Conclusions summarizes the general picture of the electoral process and provides an assessment thereof; ● The section Recommendations offers an outline of the priority issues essential for the fulfilment of the right to free and fair elections in the Republic of Armenia as well as the possible steps for the solution thereof.
10 1. THE ELECTORAL LEGISLATION
1.1. THE PROCESS OF ADOPTION OF THE NEW ELECTORAL CODE
The constitutional amendments adopted on 6 December 2015 foresaw the adoption of a new Electoral Code until 1 June 2016 regulating the details of the new electoral system.
The Presidential Decree no PD-170-A dated 10 February 2016 and entitled “On the Organisation of the Legal Aspects of the Constitutional Amendments”2 defined the list of laws to be harmonised with the new Constitution, the deadlines and the list of bodies in cհarge.
In line with the above Decree, the bodies in charge of drafting and submission of the RA Electoral Code were the RA Ministry of Justice and the Central Electoral Commission, while the deadline for the submission of the draft to the NA was 1 March 2016, i.e. 18 days after the formation of the professional advisory council in charge of the legal aspects of the constitutional amendments. The draft law was not submitted to the NA within the set timeline and neither was it published on the website of the responsible state institutions. Contrary to the recommendations of the OSCE/ODIHR3, the draft was developed in a non-participatory manner by the relevant working group, without broad public awareness campaign and consultations. It was made available to the public in the framework of the agenda of the 3 March 2016 session of the RA Government4 in breach of the procedures prescribed by the RA legislation5, almost two weeks after its
2 RA Presidential decree PD-170-A dated February 10, 2016 “On the organisation of the legal aspects of the constitutional amendments: http://www.president.am/hy/decrees/ item/2566/ 3 Final report of the OSCE/ODIHR referendum expert team on December 6, 2015 Constitutional Referendum held in the Republic of Armenia: http://www.osce.org/odihr/ elections/220656?download=true 4 Government session agenda of March 3, 2016: https://www.e-gov.am/sessions/ archive/2016/03/03/ 5 Statement of the Transparency International Anti-corruption Center (TIAC) on the illegality of the development process of the dra Electoral Code of Armenia: https://transparency. am/en/news/view/1318
11 English version had been posted on the website of the Venice Commission.6 The period between its publication and adoption by the NA was extremely short and the civil society organisations had limited opportunity to express their concerns and recommendations on the draft.
On 29 February 2016 a number of civil society organisations took part in a consultation on the Electoral Code7, in the framework of which the priority issues of the electoral legislation were identified.8 In the course of this consultation it was agreed by a consensus to jointly formulate the priorities and to consistently implement them.
On 19 March 2016, the Citizen Observer Initiative published a statement expressing concern over the limitations on the rights of domestic observers and mass media representatives prescribed by the draft RA Electoral Code.9
The public consultations on the electoral legislation were limited to an event organised by the OSCE10, the participants of which were given an opportunity for a 5-minute presentation each, and the public hearings held by the NA on 22 March 201611, the participants of which were given an opportunity for a 5-minute presentation and presented the priority issues. 12
6 The English version of the dra Electoral Code of Armenia published on the website of the Venice Commission on February 22, 2016: http://www.venice.coe.int/webforms/ documents/default.aspx?pdffile=CDL-REF(2016)018-e 7 https://www.youtube.com/watch?v=zLu6icGrIhw 8 http://www.civilnet.am/news/2016/02/15/armenia-new-electoral-code/286943 9 The Statement of the “Citizen Observer” Initiative published on March 19, 2016: https://citizenobserver.am/en/news/view/statement-on-local-observers-and-mass-media- representatives-activity-limitations-in-dra-elector2016-03-19-10-11 10 The OSCE Office in Yerevan supports public discussion on dra Electoral Code: http:// www.osce.org/yerevan/228376 11 Public hearings were held at the National Assembly on March 22, 2016, during which Lousineh Hakobyan and Tigran Yegoryan, the representatives of ELA spoke about the necessity to publicize the signed voter lists as a first step of crucial importance in the process of improving the electoral system and electoral processes and the public confidence towards these processes. https://www.youtube.com/watch?v=f1QTsRB1K6w&t=2s; https:// www.youtube.com/watch?v=kPQ34shWYWw 12 https://www.youtube.com/watch?v=usZncLw1b2o Levon Barseghyan- /6:05:43-6:11:00/ talks about the signed voter lists, cameras, peculiarities of elections in Gyumri and Vanadzor/. Heriqnaz Tigranyan- /6:11:10-6:16:35 /- speaks about sending the dra to the NA with procedural violations, as well as about the restrictions of the rights of observers/. Daniel Ioannisyan- /5:17:12-5:23:03/ speaks about the signed voter lists, territorial lists of parties/.
12 The above events were very far from the format of consultations and were ineffective and insufficient to be considered as pubic consultations on such essential legislative amendments. The other format of public consultations was the so-called “4+4+4” format in the framework of which a number of specific issues were discussed 13 by the ruling parliamentary faction, some opposition factions and civil society representatives (elected by an impressive number of non-governmental organisations) 14, which did not yield any results given the fact that the agreed amendments were not enacted.15 Following this, on 25 May 2016 the civil society representatives who participated in the ‘4+4+4’ consultations, made a statement on the recommendations prescribed by the agreement between the ruling and non- ruling parties on the organisational-technical mechanisms for overseeing the electoral process in the new Electoral Code.16 The authors of the statement deemed the piecemeal and controversial approach to individual components of the electoral system (legislation and process) unhelpful in raising trust towards the elections, demanding immediate removal of the restrictions on the rights of observers and media representatives and duly implementing the OSCE/ODIHR recommendations17 by, inter alia, eliminating the observer tests, enabling observation missions to contest the violations of general (objective) electoral rights and prescribing more comprehensive safeguards and effective means for all interested parties in challenging the results of the vote.
The authors of the draft oftentimes evaded the discussions held by civil soceity. As a result, despite the fact that non-governmental organisations and field experts were critical of the draft and made very concrete recommendations on its improvement, they were not reflected in the Electoral Code adopted
13 Initial joint demands concerning the Electoral Code: https://citizenobserver.am/en/news/ view/primary-joint-demands-related-to-the-electoral-code2016-03-22-10-20 14 Statement on participation in the process of improvement of the dra Electoral Code: https://citizenobserver.am/en/news/view/statement-on-engagement-in-the-work-for- improvement-of-the-dra-electoral-code-of-armenia2016-03-24-10-23 15 Changes agreed within the framework of “4 + 4 + 4” format will not be taken into consideration during the upcoming national elections: https://www.azatutyun. am/a/27952602.html. The extraordinary meeting of the CEC concerning the entry into force of the Law on Making Amendments and Changes to the Electoral Code of June 30, 2007 (HO-120-N). 16 https://citizenobserver.am/en/news/view/statement-on-organisational-technical- mechanisms-of-the-control-over-the-legitimacy-of-electoral-pro2016-06-16-10-45 17 http://www.osce.org/odihr/elections/armenia/246566?download=true
13 on 25 May 2016. In this regard, the organisations members of the COI made several statements.18
The new Electoral Code was adopted on 25 May 2016 along with amendments to a number of related laws (RA Criminal Code, RA Code of Administrative Violations, RA Administrative Procedure Code, etc.).
The State continued consultations with political forces, international and diplomatic structures, benefiting in this process from the expertise of civil society organisations, concentrating in particular on the organisational and technical aspects of the oversight over the legality of the voting process in anticipation of foreign and international financial assistance.19
In these processes various civil society representatives, including the COI made statements.20
On 13 September, a working session for the purpose of signing the final document on the organisation and holding of the electoral processes in the Republic of Armenia took place in the National Assembly21, in the course of which the representatives of the parliamentary factions RPA, PAP, ANC, RoL and ARF signed a joint statement.22
18 Opinion on compliance of the provisions of the dra Electoral Code of the Republic of Armenia with international standards: https://citizenobserver.am/en/news/view/ opinion-on-the-compliance-of-the-provisions-of-dra-electoral-code-of-the-republic- of-armenia-with-2016-05-10-10-36 . Statement on the limitation on the activities of local observers and mass media representatives foreseen in the dra Electoral Code, May 31, 2016: https://citizenobserver.am/en/news/view/statement-on-local-observers- and-mass-media-representatives-activity-limitations-in-dra-elector2016-03-19-10-11. Statement on organisational-technical mechanisms of the control over the legitimacy of electoral process in the new Electoral Code, June 23, 2017: https://citizenobserver.am/ en/news/view/statement-on-organisational-technical-mechanisms-of-the-control-over- the-legitimacy-of-electoral-pro2016-06-16-10-45 19 http://www.parliament.am/news.php?cat_ id=2&NewsID=8538&year=2016&month=06&day=16&lang=eng, http://www.ela.am/ index.php?route=news/article&news_id=135 20 Statement on organisational-technical mechanisms of the new Electoral Code: https:// citizenobserver.am/en/news/view/statement-on-organisational-technical-mechanisms-of- the-control-over-the-legitimacy-of-electoral-pro2016-06-16-10-45 21 The authorities presented the process within the framework of “4+4+4”, however its format was quite different. 22 The participants of “4+4+4” format signed a statement: http://www.parliament.am/news. php?cat_id=2&NewsID=8657&year=2016&month=09&day=13&lang=eng
14 In line with the agreement obtained as a result of the above process, amendments were made to the RA Electoral Code and the RA Criminal Code on 20 October 2016. The agreement of the political forces concerned videorecording and livestreaming in the polling stations on the E-Day, making the signed voter lists publicly available, as well as other issues.23 At the same time, amendments were made in the RA Criminal Code and stricter punishments were foreseen for electoral offences. In addition to this, a new criminal offence was introduced (Article 154.8 of the RA Criminal Code), which criminalised making a false statement on voter impersonation or enclosing a statement with a forged signature to the report, which raised formidable public criticism by various civil society organisations, including professional circles.24
The above agreement also foresaw a trilateral commission composed of representatives of the ruling and non-ruling parties, as well as civil society organisations. The Government adopted a decree on the joint commission.25 However, civil society organisations refused to take part in the work of the commission.26 The aforesaid amendments were stipulated by the RA Law on Amending the RA Electoral Code dated 20 October 2016.
The civil society organisations issued a statement stressing that the legislative amendments are an essential but not sufficient condition for organising free and fair elections and fulfilling the right to vote in line with the RA Constitution and international standards, especially considering the shortcomings of the Electoral Code, including in the area of election financing, protection of the right to vote (effectiveness of the right to complaint and the relevant procedures), as well as those in the area of the regulations and limitations of the rights of observation missions and media representatives.2728
23 http://www.a1plus.am/1485857.html 24 Statement of the NGOs on making amendments and changes to the RA Criminal Code introduced by the Armenian Government: October 22, 2016: https://transparency.am/ en/statements/view/215, http://www.ela.am/index.php?route=news/article&news_id=113 25 https://www.e-gov.am/gov-decrees/item/27883/ ,Annex: https://www.e-gov.am/u_files/ file/decrees/kar/16_1158.pdf 26 https://citizenobserver.am/en/news/view/statement-on-rejection-to-enter-the-joint- commission-for-technical-provision-of-the-voting-process2016-12-12-11-12 27 Statement of the NGOs on the Electoral Code of Armenia and the recent developments related to it; September 9, 2016: https://citizenobserver.am/en/news/view/statement- on-the-electoral-code-of-armenia-and-the-recent-developments-related-to- it2017-09-09-10-49 28 The joint Statement of the NGOs; September 12, 2016: https://citizenobserver.am/en/ news/view/joint-statement-of-ngos2016-09-12-10-53
15 One of the essential assignments of the Commission, which was the audit of the database of voter ID cards and passports, was never fulfilled29, while this was truly essential for ensuring public trust in the newly introduced VAD equipment. As regards the installation of videocameras, although it was foreseen that all polling stations would be equipped with cameras, they were installed in 1500 polling stations only. Apart from this, it was decided not to make audiorecordings or audiostreaming in polling stations, a decision, which was never convincingly justified. The non-availability of the videomaterials was also an issue reducing considerably the effectiveness of this tool, as well as public trust in electoral processes. The livestreaming was stopped after the summary of the results of the vote and the footage was not made available to the public. The fact that they were made available to the parties, which were entitled to this by law, was not a sufficient safeguard either.30 Considering the international best practices (where there is a possibility of videorecording the electoral process), it is of utmost importance to analyze the relevant footage with a view to further improving the electoral process. On 6 October 2016, a number of civil society organisations expressed serious concerns on the reappointment of the same CEC members in the light of the need to increase public trust in the reform of the electoral system and the legality of the forthcoming elections, emphasizing the need for more profound amendments, including election of new members to the CEC who will be independent and able to administer lawful and trustworthy elections, due protection of the right to vote and will not be tarnished with reasonable doubts regarding their role in the commission of electoral fraud in the past.31 In this regard, criticism was subsequently expressed also by Ambassador Piotr Antoni Switalski, Head of the EU Delegation in Armenia.32
29 http://hayastan24.com/?p=14518&l=am 30 The service provider requires a storage medium with at least 120 TB memory (however, ELA’s calculations demonstrate that the volume of recorded footage in 1500 polling stations is about 10-16 TB) and AMD 372,000 for the provision of the footage of the voting and summarisation procedures from 1500 polling stations. In order to provide 120 TB of storage capacity, 12 storage media with 10 TB of memory are needed, each costing approximately $ 600 – AMD 288,000 (the most affordable price in the market). To obtain a backup copy of the footage AMD 3.828.000 (3.456.000 + 372.000) is needed, according to the service provider’s requirement. This is a serious obstacle for NGOs to obtain the footage, which makes the analysis of this footage impossible. 31 https://citizenobserver.am/en/news/view/statement-on-the-formation-of-the-central- electoral-commission2016-10-07-10-58 32 https://www.azatutyun.am/a/28554999.html
16 The COI held a conference on the new Electoral Code and its amendments on 11 Novenber 201633, and invitations were sent to NA members, representatives of state institutions (CEC, CC, Government, HRD), civil society representatives and field experts.34
1.2. THE MAIN INNOVATIONS AND ISSUES OF THE ELECTORAL CODE
The main amendments to the new Electoral Code (and the related laws) are: ՝
• Introduction of the system of ‘stable majority’ and the related regulations on the second round of elections and the bonus system; • Introduction of territorial electoral lists (rating lists) in the framework of the proportional system; • Limited possibilities for political forces to make a coaltion (to be formed by not more than 3 parties or party alliances); • Amendment (lifting) of the restrictions for politicians and some public servants to take part in the electoral campaign; • Elimination of the testing requirement for observers and simplified accreditation procedures; • Restrictions of the rights of observers and media representatives; • Publication of the signed voter lists; • Videorecording and livestreaming from polling stations; • Introduction of the voter authentication devices; • Extending the deadlines for submitting complaints to electoral commissions; • Deliberate encumberment of electoral complaints procedures, the formal requirements foreseen for the complaints, as well as the manner of submission of the complaints, the restriction of the possibility of readdressing the complaints, the restrictions in the area of institution
33 http://yerevan.today/all/politics/10399/yntrakan-nor-orensgrqi-vichaharuyc-normery- pordzagetneri-meknabanmamb 34 http://yerevan.today/all/politics/10399/yntrakan-nor-orensgrqi-vichaharuyc-normery- pordzagetneri-meknabanmamb
17 of administrative proceedings, appointment of hearings and the pronouncement of decisions, elimination of the obligation of TECs to notify of TEC sessions and decisions, the issue of these decisions becoming effective and their accessibility to the interested parties, which compromises significantly the system of effective remedies for such violations; • Restrictions in the area of the right to seek for judicial redress and the relevant timeframes (the right to access to court).
In addition to the Electoral Code, the Criminal Code foresaw stricter liability for electoral violations, including supplementary liability. An incentive was foreseen by the article setting out liability for votebuying.35
The amount of the electoral deposit was also increased along with the maximum permissible ceilings of the electoral funds.36 The maximum permissible investments in the electoral funds of parties and party alliances by physical persons was set at 500 times the minimum salary, while the maximum ceiling of expenditures made with a view to financing any electoral campaign costs was set at up to 500,000 times the minimum salary (the above ceilings are set at five times the ceilings prescribed by Electoral Code adopted in 2011).
Nevertheless, the new Electoral Code preserved serious problems and despite the fact that non-governmental organisations, the professional community and the opposition parties continued to voice these concerns along with offering solutions, they did not receive adequate response from the authors of the draft and the legislature. The voiced problems inluded:
• Absence of effective mechanisms foreseen by the Electoral Code against any form of use (abuse) of the administrative resources in the pre- election period; • The fact of publicizing the signed voter lists without a search engine, which required extensive resources for the effective analysis of these
35 The recipient of the electoral bribe is exempted from criminal liability if he / she voluntarily informs about the crime committed before the law-enforcement bodies ( but not later than three days) and assists in the detection of the offense (Article 154.2 of the Criminal Code of the Republic of Armenia). 36 Electoral Code of Armenia, Article 92
18 lists and detection of violations rendering their timely and effective use almost impossible; • Absence of the possibility to compare the voter lists with the population register and lack of their interoperability; • Absence of the possibility to check the electronic voter lists printed by VADs and the data input during the process of voting; • Foreseeing a possibility to sign in the column ‘Other Notes’ in case of detecting a signature in front of the voter’s name in the voter list in the Electoral Code and absence of the legislative requirement to undertake any action in this regard (registration, recording in the commission log, examination of such cases); • Lack of access to the footage after the E-day (they may be made available for a limited time and at a very expensive cost); • The new system of ‘stable majority’, according to which the party or party alliance having obtained the maximum number of votes, receives 54% of the seats in the parliament, if necessary, also through a bonus system, which is a serious problem in terms of political competition; • The mechanism of nomination of the national minorities and the distribution of mandates, which creates a possibility for receiving additional mandates; • The possibility of creating a coaltion for a limited number of political forces: it may include not more than 3 parties or party alliances. If it is impossible to form a majority, the two parties or party alliances having obtained the majority of votes, participate in the second round of elections; • The introduction of the territorial electoral lists in the framework of the proportional system (the rating lists), which stimulated considerably the vicious practice of abuse of the administrative and financial resources and excluded essentially political competition and, as a result, compromised the political purpose of the proportionate system; • Secrecy of the polling stations, where voters included in the voter lists of military units voted and these lists, which limited considerably the public oversight over voting by the military;37 • Restrictions of the right to hold an observation mission by foreseeing
37 According to the previous Electoral Code of 2011 only the lists of soldiers/military servants were confidential.
19 the requirement of having the goal of contributing to the consolidation of democracy and human rights protection in organisational statutes for at least a year preceding the decision on appointing elections; • The restrictions of the rights of the mass media applying for accreditation in the CEC by foreseeing a requirement for issuing publications for at least a year prior to the adoption of the decision on holding elections; limiting the number of media representatives to 50 for one media entity in the case of 2009 polling stations formed for elections to the NA, creating unequal and privileged conditions for the media engaged in overground broadcasting; • The possibility for PECs to limit the number of observers or media representatives that are present in the voting room at the same time (but not less than 15 observers or media representatives) by the vote of the 2/3 of the PEC members, which, however, does not apply to visitors, international observers and representatives of television and radio companies engaged in overground broadcasting, which is essentially a discrimination; • The right of the PEC members to remove an observer, a proxy or a media representative from the commission hearing or the voting room (on the E-day) by the 2/3 of its members; • An extremely narrow scope of the parties having a right to contest the results of the vote or elections, contrary to the OSCE/ODIHR recommendations, the observation organisations were not given the right to contest the results of the vote or elections;38՝ ։ • Time limitations introduced for admitting complaints: until 22.00 on the E-day, 12.00-18.00 on the day following the E-day and 09.00-11.00 on the second day following the E-day. In addition to this, a number of other limitations were introduced, including the requirement to submit the complaints and original POAs and copies of observer badges enclosed with them prior to the set deadline; • Removal of the obligation to issue a due and timely notice of hearings of electoral commissions and decisions adopted by them, as well as the issue of accessibility of the adopted decisions;
38 Janurary 18, 2016 joint opinion of the Venice C omission and OSCE/ODIHR on the dra Electoral Code of the Republic of Armenia: http://www.osce.org/odihr/elections/ armenia/246566?download=true
20 • Impossibility to submit complaints to the CEC on non-working days; • The issue of ensuring the uniformity of election administration (exclusion of double standards); • Absence of real and effective public oversight over the electoral commissions at all levels; • Discriminatory regulations related to the exercise of these rights by citizens residing outside the Republic of Armenia.39
In addition to the above problems of the Electoral Code, the RA Criminal Code foresaw liability for making a false statement on the fact of voter impersonation or enclosing a statement with a forged signature to this statement committed either intentionally or negligently. In the latter case a fine in the amount of 200 000 – 800 000 AMD or imprisonment for up to 2 years was foreseen (Article 154.8 of the RA Criminal Code). This liability restricts the possibility for making reports on this type of electoral fraud detected as a result of publicizing the signed voter lists eliminating essentially the positive impact of the publication of the signed voter lists from the perspective of public oversight.
39 Only citizens being abroad on diplomatic and consular missions and their family members, servants being abroad for long-term service or training, as well as members of foreign representative offices of legal entities registered in the Republic of Armenia and their family members residing abroad have the right to vote; they can vote electronically.
21 2. THE OBSERVATION MISSION
2.1. THE OBSERVATION MISSIONS AND OBSERVERS
● The International Observation Missions.
650 observers from 6 international organisations (OSCE Parliamentary Assembly, Parliamentary Assembly of the Council of Europe, European Parliament, OSCE/ODIHR Elections Observation Mission (EOM) Short-term Observers, OSCE/ODIHR Observation Mission (EOM) Core Team, OSCE/ ODIHR Observation Mission (EOM) long-term Observers) were accredited in the manner prescribed by the RA Electoral Code and monitored the preparation, holding and summarisation of the elections to the NA.
Requests for monitoring the elections to the NA were made to the RA Central Electoral Commission and the RA Ministry of Foreign Affairs inter alia by the European Platform for Democratic Elections (EPDE) and the European Network for Election Monitoring Organisations (ENEMO). However, the Central Electoral Commission refused to invite them on the pretext that the number of the accredited observers was too high.40
● Domestic Observation Missions.
The number of accredited observers for the elections to the NA on 2 April 2017 was 28021 and they represented 49 organisations.
Although the above numbers are impressive at first sight, the reality is slightly different. In particular, the section on the violations observed indicates cases when observers representing different observation missions manifested conduct which was in breach of the requirements of impartiality and neutrality. There was low level of public trust in observation organisations and their
40 EPDE condemns the Armenian Government’s refusal to invite international citizen election observers; March 2017: http://hcav.am/events/22-03-2017-03-en/, ENEMO Concerned over Armenian CEC’s Decision to Reject Invitation for Election Observation, March 2017, http://www.enemo.eu/en/news/236-enemo-concerned-over-armenian-cecs-decision-to, The Explanation of the CEC, March 2017; http://www.elections.am/news/id-427/
22 observers from the very beginning. This, however, became even worse when their true mission was revealed both thanks to the efforts of real observers and the interview41 of Hovhannes Hovsepyan,42 by which he unveiled the true mission of these observation missions and their observers, their chain of command, the total control over elections by means of this chain and the fact that they reported unconditionally to the RA President Serzh Sargsyan.
The issue of effectiveness of observation missions and observers and proxies was also touched upon by the RA Constitutional Court in its decision dated 28.04.201743 (DCC-13642, paragraphs 11, 12) stressing, in particular, the role of the Citizen Observer Initiative.
2.2. THE GOALS OF THE COI OBSERVATION MISSION
The COI held an observation mission during the elections to the NA appointed on 2 April 2017. The goal of the COI observation mission was to monitor the legality of the elections to the NA, including by:
41 http://armlur.am/681377/ 42 1996-2002 – worked in the legal department of the RA Presidential Administration as a first-class specialist, leading specialist; in the state-legal department as a chief specialist, consultant. • 2002-2006 – Head of the HR department of the office to the RA President. • 2003-2004 – lecturer at the RA Academy of Public Administration • March 2006 - February 2007 – President of the “Alliance” consulting center • February- December 2007 - Advisor to the RA Minister of Territorial Administration • On December 22, 2007 was appointed deputy minister of Territorial Administration. • On May 26, 2008 he was dismissed from the position of Deputy Minister of Territorial Administration of the Republic of Armenia on the basis of the decision of the RA Prime Minister. • On May 26, 2008 was appointed Head of the Control Service of the President of the Republic of Armenia according to the decree of the RA President. • On March 3, 2016 was dismissed from the position of the Head of the Control Service of the President of the Republic of Armenia by the decree of the RA President. • On March 3, 2016 was appointed Chairman of the State Revenue Committee by the RA President’s decree. • Head of the Control Service of the President of the Republic of Armenia since May 23, 2017. 43 http://www.concourt.am/armenian/decisions/common/2017/pdf/sdv-1364.pdf (SDO- 1364, paragrapf 12)
23 ● detecting electoral violations committed in the process of elections connected with the exercise, fulfillment and protection of this right and making them public; ● initiating actio popularis in order to make the authorities carry out an effective examination of these violations; ● engaging in the protection of subjective and objective electoral rights on the facts of election-related violations by initiating a process of complaints to the bodies in charge of election administration and the judiciary and, if necessary, making reports to the law enforcement bodies; ● developing an informed, independent and impartial perspective on the electoral process, the exercise of electoral rights and effectiveness of the protection thereof; ● Analysing the problems of the electoral process in terms of legislation and practice with a view to submitting recommendations on the improvement of the legislative framework; ● Assessing the compliance of elections with domestic legislation and the relevant international standards.
2.3. THE OBSERVATION MISSION AND THE METHODOLOGY THEREOF
The COI developed and published a handbook on parliamentary elections44, a guideline45 a code of conduct for observers46, as well as videocourses and videoclips on electoral legislation.47 The COI also held around 160 trainings in all the regions of Armenia and trained around 4000 people. The trainings were delivered by lawyers specifically trained in election law in two stages and focused on the electoral legislation, the electoral processes, the rights and obligations of observers and other electoral stakeholders. The second round of trainings was of a more practical nature, in the course of which the types of electoral violations along with case studies and problem solving, as well as the code of conduct and other issues related to observers’ functions were discussed.
44 Manual for proxies, observers and media representatives: https://citizenobserver.am/ viewGuide?file_name=book%20dzernark%202017%20aj%20small.pdf 45 Guidelines for observers: https://citizenobserver.am/viewGuide?file_name=%D5%B8%D 6%82%D5%B2%D5%A5%D6%81%D5%B8%D6%82%D5%B5%D6%81.pdf 46 Code of conduct for observers (included in the Guidelines for observers): https:// citizenobserver.am/viewGuide?file_name=%D5%B8%D6%82%D5%B2%D5%A5%D6%81% D5%B8%D6%82%D5%B5%D6%81.pdf 47 Video trainings for observers, media representatives and proxies: https://citizenobserver. am/hy/observers/videoTraining
24 The organisers recruited and trained the COI legal team composed of 36 lawyers who were providing legal advice throughout the observation mission. They also led the process of electoral complaints. The COI also had a team of analysts who analysed the data received with a view to detecting potential cases of electoral fraud and the risks thereof. Apart from that, the COI team of analysts did studies and research both in the period preceding voting as well as afterwards. The analysed information was received inter alia from the mass media, the materials of administrative proceedings, the TECs, the CEC, the courts, and the statements of the state institutions submitted to the RA Constitutional Court. The COI involved 3010 observers, 1326 of them were accredited with the CEC on behalf of ELA, 1480 on behalf of TIAC and 204 on behalf of JCA. Out of this number only 2972 participated in the mission on the E-Day. In addition to the core members of the COI the following non-governmental organisations took part in the mission:
1. ‘Khoran Ard’ NGO, Gyumri; 2. ‘Shirak Branch of the Armenian Human Rights Protection Center aer A. D. Sakharov’, NGO, Gyumri; 3. ‘Center for Community Mobilization and Assistance’ NGO, Alaverdi; 4. ‘Soseh Women’s Issues’ NGO, Goris; 5. ‘Armavir Development Center’ NGO, Armavir; 6. ‘Community Artery’ YCC, Vardenik; 7. ‘Astghatsolk’ NGO, Tchambarak.
The COI included both Armenian nationals and 147 Diaspora Armenians living in 22 countries, as well as around 100 citizens of other states interested in consolidation of democracy. The observation mission was held in 1522 polling stations, which were located in the territories served by 37 TECs. The COI team also monitored the process in 38 TECs. In choosing the polling stations the COI took note of the number of registered voters and, therefore, the largest possible polling stations were chosen. The COI also had 38 teams of mobile observers who acted as rapid response teams to support the observers monitoring the polling stations. The table below reflects the number of monitored polling stations per region and constituency:
25 Number of Administrative District Constituency TEC monitored polling stations Yerevan 1-4 1-5, 7-10 342 Aragatsotn 7 17-18 100 Ararat 5 11-13 118 Armavir 6 14-16 116 Gegharkunik 8 19-21 136 Lori 9 22-25 190 Kotayk 10 26-29 116 Shirak 11 30-33 145 Syunik 12 34-35 129 Vayots Dzor 12 36 46 Tavoush 13 37-38 82 Total 1522
The COI observers monitored the polling stations in pairs as observers accredited from different organisations carrying out a mission in the framework of the COI. When observing violations of the electoral legislation, the observers demanded that their observations be registered in the PEC log. The observers sent sms reports on electoral violations and the PEC response to these violations (by means of a special application) to the COI Coordination Center. The reports texted by the observers (around 1718) were reflected in the COI online map of violations. Following this the coordination center operators made return calls to the reporting observers to verify the reports and, if necessary, took notes of the details of incidents. As a result, 1618 violations were verified from 624 polling stations.
The legal team then drafted complaints on the basis of these reports and filed them to the relevant electoral commission.
26 2.4. THE RESULTS OF THE OBSERVATION MISSION
In what comes below, the authors present the violations and shortcomings detected by the COI observation mission by types of violations starting from the stage of preparation for voting to the stage of complaints. This report presents only the violations detected by the COI observers and analytical team, their general nature and statistics.
Merger of State Functions and Party Interests/ Use of the Administrative Resources for the Benefit of One Party
It was observed that the Republican Party of Armenia having at its disposal all state power used it to advance the party interests and goals. The Republican Party of Armenia has members in almost all the executive offices (starting from the President of the State) and the legislature (simple majority).
The merger of party and state functions was more obvious and larger in scope during these elections than ever before.
This was manifested in the fact that Edward Sharmazanov, RPA Speaker and Deputy Speaker of the National Assembly regularly declared in the period preceding the elections that the RPA would be the most influential party in the coming decade and that it was only through this channel that people could be appointed to a public office and be successful in politics.48
48 https://armenpress.am/arm/news/760338/apaga-tasnamyakum-hhk-n-linelu-e- hayastani-qaxaqakan.html http://www.azatutyun.am/a/26884985.html http://www.azatutyun.am/a/25387042.html
27 2.4.1. THE ELECTION CAMPAIGN49 THE PROBLEMS AND VIOLATIONS REGISTERED IN THE PERIOD PRECEDING THE EDAY
Use of the Administrative Resources Mostly in Favour of One Party
The involvement of public officials and the use of the state and community resources in the election campaign had a considerable influence on the formation and expression of the will of voters considering the fact that a number of high-ranking officials played a leading role in the election campaign, as well as the possibility of direct impact of public servants on very concrete voters and/or people connected with them. Nevertheless, this question was not properly examined and assessed by the bodies in charge of election administration, in particular the CEC.
According to the data in the public domain, the pre-election fund declared by the RPA was the biggest, reaching 400.000.000 AMD, which is almost three times more than that of the other parties’ (party alliances’).50
Involvement of High-Ranking Officials in the Election Campaign Mostly in Favour of the Republican Party of Armenia
The three high-ranking officials leading the RPA’s electoral list Vigen Sargsyan, the RA Minister of Defence, Arpine Hovhannisyan, the RA Minister of Justice, Taron Margaryan, the Mayor of Yerevan, as well as Karen Karapetyan, the RA Prime Minister (has recently joined the RPA)51 held an election campaign in the whole territory of Armenia.
Serzh Sargsyan, President of the Republic and the Chairman of the Republican Party of Armenia visited Artsakh, including a number of military units along with the RA and Artsakh ministers of defence and got familiarized with the military preparations of the armed forces. The relatives of the military also took part in the event. Following this, Serzh Sargsyan made a speech, which essentially was an election campaign in favour of the RPA and a campaign
49 Taking into account the new regulation of the electoral legislation, according to which pre-election campaign can also be carried out before the period prescribed by law, this section presents the cases of pre-election campaign involving high-ranking officials also before the official launch of the pre-election campaign. 50 http://res.elections.am/images/audit/02.04.17m.pdf 51 http://armlur.am/672328
28 against some of the election participants. This speech was widely covered by the media.5253
Vote-Buying: Mass Vote-Buying, Response of the Public Officials and the Law Enforcement to the Incidents of Vote-Buying
Various incidents of vote-buying, promise and/or attempts thereof were registered. There were in total 65 reports of vote-buying in the media concerning voters in around 189 polling stations (12 urban and 6 rural in 9 regions of Armenia) in around 28 constituencies of the State (1, 2, 3, 4, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 33, 34, 37, 38).
52 http://news.1tv.am/hy/2017/03/25/%D5%86%D5%A1%D5%AD%D5%A1%D5%A3%D5% A1%D5%B0-%D4%B1%D5%B9%D6%84-%D5%B9%D5%A5%D5%B6%D6%84-%D5%A 9%D5%A1%D6%80%D5%A9%D5%AB%D5%9D-%D5%B0%D5%A1%D6%80%D5%AF- %D5%A5%D5%B2%D5%A1%D5%AE-%D5%A4%D5%A5%D5%BA%D6%84%D5%B8%D6% 82%D5%B4/54594 http://www.president.am/hy/press-release/item/2017/03/25/President-Serzh-Sargsyan- awarded-Soldiers-in-Artsakh/ http://galatv.am/hy/your-voice/184763/ , https://zham.am/?p=6577&l=am , http://www.irates.am/hy/1490530576 , http://www.chi.am/index.cfm?objectid=A8EA05A0-1375-11E7-B75EDA96B1BA47AC , http://araratnews.am/serzh-sargsyaneh-koch-e-anum-chehntrel-nikol-phashinyanin/ , https://www.azatutyun.am/a/28390759.html, http://www.civilnet.am/news/2017/03/25/%D5%8D%D5%A5%D6%80%D5%AA- %D5%8D%D5%A1%D6%80%D5%A3%D5%BD%D5%B5%D5%A1%D5%B6%D5 %B6-%D5%A1%D5%BD%D5%A5%D5%AC-%D5%A7%D5%9D-%D5%B8%D6%8- 0%D5%BF%D5%A5%D5%B2-%D5%A7-%D5%BF%D5%A5%D5%BD%D5%B6%D5%B 8%D6%82%D5%B4-%D5%AB%D6%80%D5%A5%D5%B6-2018-%D5%AB%D6%81- %D5%B0%D5%A5%D5%BF%D5%B8/311324 53 Serge Sargsyan particularly said: “We must understand that April 2 is not a game, it is not a lie, tongue-twister competition, we must understand that on April 2 we do not elect good jumpers on the roofs, we elect those defending our people’s right to exist. We elect those who will give us commands to take arms, attack and retract if necessary. We elect those who have enough inner strength to do this. We choose those under whose command these guys will finish their service, under whose command the next generation will serve, who will protect our children’s right to carefree education and the sunset of our elders. Do we understand this is or not? We just have to understand this when approaching the ballot box. Any member of the society can be confident. We did not and will not spare any effort and means, and the opportunity to further strengthen our security, to add additional components to it. Together with efforts to ensure favorable external conditions for the development of our country, we will continue to modernize our Armed Forces, to increase combat readiness, and to equip us with the latest and adequate armament, in fact, the policy of no alternative.”
29 According to various sources (media publications, observations of participants of election campaign meetings and rallies), vote-buying was of a widespread and organised nature. According to some media publications, the size of the bribe, by the mutual agreement of the parties and party alliances engaged in vote-buying, reached 10 000 AMD.54
The conduct of public officials and the law enforcement bodies essentially encouraged vote-buying and created an air of impunity. In what follows below one can find the public statements of a number of high-ranking officials and politicians about vote-buying:
Hermineh Naghdalyan, NA Vice Speaker and RPA Member stated, in particular, no matter which party is engaged in vote-buying, this is charity, these people simply make donations, they just donate gis without any hope for vote-buying and that there is not a single mechanism, not a single way in the Electoral Code aer giving the bribe to check whether the one that took the bribe voted in their favour.55
It is noteworthy that while Hermine Naghdalyan, an RPA member speaks of a mechanism (oversight over voting), in case of application of which the electoral bribe or a promise thereof is effective and justified, she is at the same time trying to deny the existence of this mechanism.
Vladimir Gasparyan, Chief of Police declared that the electoral bribe is a phenomenon difficult to prove.56
Edward Sharmazanov, Deputy NA Speaker does not think that vote-buying had any serious impact on the elections. Relying on Vladimir Gasparyan’s statement, he further stated that it was very difficult to detect vote-buying to say nothing of assessing it on the election day.57
The fact that the information concerning widespread vote buying was
54 https://www.radioaurora.am/article/1489547969/yntrakasharqi-chapy-10000- dram.html , http://hraparak.am/?p=140397&l=am/ yntrakasharq+baganelu+harcum+xaxi+miasnakan+kanoner+en+sahmanel+ https://www.azatutyun.am/a/28407083.html 55 https://news.am/arm/news/381992.html 56 https://news.am/arm/news/374917.html 57 https://www.azatutyun.am/a/28412112.html
30 trustworthy, was corroborated by the statements of the aforementioned public officials and politicians, as well as the warning of the CEC related to election campaign violations committed by Gagik Tsarukyan at the top of the list of Tsarukyan Alliance. Gagik Tsarukyan issued a statement in response to this, stating that the promises he made would be delivered aer 2 April.58 The CEC’s reaction to this was silence. The CEC rejected the complaint of ‘Yelq’ Alliance on applying to the court for annulling the registration of Arakel Movsisyan, RPA candidate on the grounds of giving a promise of bribe.
During the press conference convened on 3 April, Ignacio Sanchez Amor, the Special Co-ordinator of the OSCE/ODIHR Election Observation Mission stated that ‘Despite welcomed reforms of the legal framework and the introduction of new technologies to reduce electoral irregularities, the elections were tainted by credible information about vote-buying, and pressure on civil servants and employees of private companies... This contributed to an overall lack of public confidence and trust in the elections.’59
Actions Taken by School and Kindergarten Principals as Public Sector Employees in Favour of the Republican Party
As early as 2012 the Journalists’ Club ‘Asparez’ conducted a study among the principals of all public schools of general education in 20 largest towns of Armenia (in around 800 out of the 1500 schools of Armenia).60 It was revealed that 70% of the respondent school principals were members of the Republican Party, of which 50 % became RPA members in the course of the last 6 years.
During the election campaign for NA Elections of the VI convocation held on 2 April 2017, information was circulated in the press that public officials from the bodies of public administration and local self-government throughout the whole territory of Armenia force the employees of kindergartens and schools, as well as their family members, relatives and parents to vote in favour of the RPA. These actions were accompanied by collection of the
58 http://www.azatutyun.am/a/28360208.html, http://www.aravot.am/2017/03/13/865181/http://yerkirmedia.am/1political/carukyan- tigran-mukuchyan-nakhazgushacum/ 59 http://www.lragir.am/index/arm/0/country/view/150953 60 http://www.asparez.am/levon-barseghyan-politicized-educational-system-2/#. WPTLnfmGO01
31 personal (including passport) data of these parents, and compiling of the relevant lists. A number of election stakeholders made reports about such incidents.
The bodies of public administration and local self-government in charge of administering and holding elections, did not take any measures to detect and prevent these incidents.
Under such conditions the NGO Union of Informed Citizens recorded telephone conversations with the principals of 84 schools and 30 kindergartens, in which the latter described in detail how they were compiling the lists of voters and the circumstances surrounding these lists.61
The above principals essentially abused their office by making lists of citizens voting for the RPA and handed these lists over to the bodies of regional administration and local self-government, the relevant bodies of the administrative districts of capital Yerevan, the central electoral headquarters of the Republican Party, as well as the electoral headquarters of the candidates included in the RPA list. When carrying out an electoral campaign the latter included the employees – teachers – of the educational institution managed by them.
On 25.03.2017 the party alliance Ohanyan-Raffi-Oskanyan applied to the CEC for lodging a complaint to the court with a request to annul the registration of the RPA list on the basis of the facts publicized by the UIC. The party alliance ‘Yelq’ also applied to the CEC with a similar complaint. According to the CEC, while examining this application the CEC also examined the statements given to it by the above principals (hereinaer: ‘the Statements’).62
61 The NGO publicized (http://uicarmenia.org/) the audio recordings of the conversation with the principals of schools and kindergartens (hereinaer: Recordings) (See the article entitled “The Directors of Schools and Kindergartens Collect Votes for the Republican Party” published on the news website http://www.civilnet.am/). 62 The CEC acquired documents entitled “Statements,” which it attributed to the directors involved in the controversial recording. There is no evidence among the materials of the administrative proceedings proving that the identity of the authors of the Statements had been verified. There is no document concerning the status of the authors of the explanations, there is no explanation of who, where and when made a decision to take statements, how the authors of statements were notified about that, how they appeared among the materials of the case instituted on the basis of the application of ORO bloc of parties, why the same documents (originals) are the part of the materials of two different administrative proceedings and are in the folder of the 2nd administrative case.
32 The CEC admitted the occurrence of 2 incidents of influence on teachers and student parents by principals (in Khoznavar and Gyumri).
By its Decision no N-145A dated 28.03.2017, the CEC refused the application of the party alliance Ohanyan-Raffi-Oskanyan and by its Decision N-146A it refused the application of the party alliance ‘Yelq.’
The General Prosecutor’s Office and the investigative bodies did not carry out an effective examination into these cases .63
2.4.2. PREPARATION FOR VOTING
The violations registered in the preparatory phase reached 228 (13.2% of all the monitored violations) in 190 polling stations (in 12.4% of all the monitored polling stations). Furnishing of the Voting Room. The most frequent violation at the preparatory phase is the wrong furnishing of the voting room. The total number of violations in this phase was 146 in 130 polling stations, of which 89 related to access to the voting room, in particular the absence of ramps, which could render the entry of people with disabilities to the voting room difficult. 35 incidents of wrong furnished voting rooms were registered, which rendered it difficult for observers to effectively monitor the process of voting and the PEC work. Problems connected with the number and layout of voting booths were registered in 22 polling stations. In the overwhelming majority of these cases one voting booth was located in such a way as to render it possible to control voting inside the booth. In 10 cases the violation was rectified after the observer notified the commission of the violation. Only 25 out of the 146 violations were eliminated and 59 recorded in the PEC log.
63 The working group formed according to the order of the RA Prosecutor General is currently examining the material published by the “Union of Informed Citizens” entitled “ The Republican Party of Armenia (RPA) Abuses the Administrative Resources in Schools and Kindergartens: recordings.” Prosecutor General’s Office informed “NEWS.am” on March 26 about this. https://news.am/arm/news/380997.html No criminal case will be filed based on the materials related to the principal of school No. 37 in Gyumri. Aer investigating the prepared materials, the prosecutor’s office did not find any grounds for instituting a criminal case. Karen Gabrielyan, prosecutor of Shirak region, informed “Azatutyun.am” about this. http://www.azatutyun.am/a/28434875.html
33 The Working Procedure of PECs
The next category of violations in the phase of preparation for vote concerned the working procedure of PECs. The total number of violations at this stage was 45 in 43 polling stations, of which 19 violations were related to the failure to properly prepare the technichal equipment, 17 – to delays in starting the PEC sessions, while the remaining 9 violations concerned the violations of the order of the lot. Of the 45 registered violations only 11 were eliminated and 20 registered in the PEC log.
Existence of Campaign Materials in Polling Stations.
18 violations were registered in 17 polling stations concerning the existence of campaign materials in the voting room or the polling stations, of which only half were eliminated after the violations were detected and 7 incidents were recorded in the PEC log.
Problems Related to the Items of Voting.
Prior to the start of voting 6 incidents were registered in 6 polling stations, of which 4 were related to the failure to properly close or seal the ballot box and 2 – with the safe. All of the 6 violations were registered in the PEC log, the violations monitored in 4 polling stations were eliminated.
2.4.3. THE VOTING
The majority of violations detected by the observation mission was committed and registered in the course of voting. The overall number of violations at this stage was 919 (53.4% of all the monitored violations) in 498 polling stations (32.7% of all the monitored polling stations). Vote Buying and/or Promise of an Electoral Bribe The COI observers managed to register incidents of vote buying and promise of an electoral bribe in 5 polling stations, of which 4 were reflected in the PEC log. Directed Voting. The COI observers revealed 169 incidents of accompanied and directed voting in 131 polling stations throughout the territory of 31 TECs (nos 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 14, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,
34 29, 31, 32, 33, 34, 35, 36, 37), of which 84 were incidents of directed voting by persons entitled to be present at the polling station, including PEC members, proxies and observers, while 87 were committed by persons with no status or with no known status. In 68 of these incidents it was registered in whose favour directed voting occurred: in case of 43 voters directed voting occurred in favour of the RPA or its candidates (63,23% of the incidents when it was possible to detect the beneficiary of the violation), in 13 incidents – in favour of Tsarukyan Alliance (19,11% of the incidents when it was possible to detect the beneficiary of the violation). Only 48 of these violations were registered in the PEC log. Campaign or Anti-Campaign Materials in Polling Stations. The COI observers reported 169 incidents of the existence of campaign or anti-campaign materials in the polling stations in 131 polling stations throughout the territory of 33 TECs (nos 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36). Of these 3 the campaigning was done by people entitled to be present in the polling station, including PEC members, proxies, while in 4 cases - by people with no status or no known status. In 22 of these cases it was registered in favour of which party, alliance or candidate the campaign was done: in 18 incidents the campaign and campain materials related to the RPA and its territorial candidates, in 2 cases - Tsarukyan Alliance, in 1 case – ‘Yelq’ Alliance ad in 1 case – the ‘ORO’ Alliance. Only one of these incidents was registered in the PEC log. Violations of the Secrecy of the Vote, Controlled Voting.
There were 194 reports concerning violations of the secrecy of the vote in 143 polling stations throughout the territory of 36 TECs (nos 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38). These reports comprised information concerning 242 violations. A considerable part of the incidents – 124 – were related to violations of the secrecy of the vote by voters. Of these only 50 were registered in the PEC log. The remaining incidents concerned control over the voting of citizens, of which only 28 were registered in the PEC log.
Problems Related to Voting Items
58 incidents were observed in 51 polling stations, of which 30 were registered
35 in the PEC log. The absolute majority of these incidents (55) was related to taking the ballot in and out of the polling station. In another case the seal of the polling station disappeared for 2 hours (20.00-22.00), while in polling station 27/6 one of the PEC members left the polling station on the pretext of smoking, taking with him his individual seal.
Incidents of Multiple Voting or Voter Impersonation, Signing Instead of Others, as well as Double Voting.
In general 61 incidents of multiple voting or voter impersonation, signing instead of others, as well as double voting were observed in 58 polling stations throughout the territory of 30 TECs (nos 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 31, 32, 35, 36, 37, 38). Of these 50 were reflected in the PEC log. The majority of the observed violations – 31 incidents – were connected with double registration of a voter with the same ID. There were also 11 incidents of registering instead of another citizen and siginig instead of another in the voter list.
Violation of the Right to Vote.
The COI observers reported 15 incidents of depriving citizens of the right to vote from 15 polling stations throughout the territory of 11 TECs (nos 1, 4, 7, 8, 13, 23, 25, 26, 36, 37, 38). Of these only 10 were reflected in the PEC log.
Violations of the Working Order of PECs. 37 incidents of violations of the PEC working order were registered in 34 different polling stations, of which the majority (29) concerned the violation of the rotation while the remaining 8 incidents concerned either the delays in the start of voting or its start ahead of time contrary to what was prescribed by law. Only 12 of these 37 violations were registered in the PEC log. Violations of the Procedure of Assisted Voting. The COI observers registered 77 incidents of violations of the procedure of assisted voting in 65 polling stations throughout the territories of 27 TECs (nos 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 25, 27, 32, 33, 35, 36). Almost half of violations (39) were registered in the PEC log. The essence of this type of violations is that with a view to controlling voting (violation of the secrecy of the vote or creating such an illusion or
36 voting instead of the assisted person) persons in no need of assistance (as well as without any effort to find out whether a person does need assistance as the law does not foresee this possibility) are being assisted in casting their vote. It is noteworthy that ‘assistance’ is rendered at the voter’s request, as well as without such a request or offer. There were incidents when the so- called voters came to the polling station earlier having in mind that they had to ‘assist’ certain citizens. The incidents of assisted voting were accompanied by the following violations: assisting a voter by a person having no right to render such assistance, one and the same person assisting more than one voter, failure to register the data of the assisting person in the PEC log, assisting a voter in no need of such assistance. In response to the inquiry made by the Alliance Independent Observer, the CEC provided the following statistics: 70488 voters were assisted during the voting day (4.5% of the actual voters). Moreover, in 23 polling stations more than 20% of voters were assisted voters, while in 4 polling stations more than 30% of voters received assistance.64 Presence of Unauthorized Persons in Polling Stations. As was the case during past elections, unauthorized persons were present widely in polling stations during voting, as well as the summarisation of the results of the vote. The COI observers only registered 96 incidents in 80 different polling stations (in around 5.5% of all monitored polling stations). Neither PEC chairpersons, nor the police took any action to rectify the violations connected with the presence of unauthorized persons in polling stations. Only 29 of these incidents were registered in PEC logs. Overcrowding and gathering of vehicles The COI observers registered crowding of people and vehicles in polling stations and in territories within a radius of 50m, which is a violation of the Electoral Code and made 111 reports concerning 94 polling stations throughout the territories of 27 TECs (nos 2, 4, 5, 7, 8, 9, 10, 12, 14, 16, 17, 18, 19, 21, 22, 23, 25, 26, 27, 28, 29, 32, 33, 35, 36, 37, 38). As in the case of the presence of unauthorized persons in the voting room, the chairperson of the PEC and the police failed to take sufficient steps to eliminate the violations concerning the presence of unauthorized persons in polling stations. Only 25 of the above cases were registered in PEC logs. The
64 http://hcav.am/wp-content/uploads/2017/07/NA-report.pdf
37 importance of these incidents is that they are connected with coordinated transfer of voters to polling stations and directed voting. Failure to Livestream the Process in Polling Stations. Starting from 7.00am on the election day the livestream from all of the 1500 polling stations was disrupted.65 The disruption lasted until around 13.00p.m. following which the livestream was partially restored. The disruption coincided with that same period of the voting day when there was significant crowding in polling stations due to the fact that voters were brought to polling stations in an organised manner, there was open and directed voting and other major disruptions of the normal course of voting. There was no official statement regarding the causes of this disruption, which creates a reasonable doubt that it was done in an organised and coordinated manner in order to render the scale of violations in polling stations as invisible as possible and to limit broader public oversight over the processes taking place in polling stations. Other In addition to the above violations, there were 204 reports from 152 different polling stations concerning the process of voting. They included holding of dinner parties in the voting room by PEC members in the presence and sometimes even participation of voters, making marks on ballots with colour pens, electricity cuts, support to certain parties by observers from various observation missions, non-sealed voting passes, presence of candidates in the voting room, difference between voter numbers in electronic and paper- based voter lists, use of alcohol by PEC members while performing their official responsibilities.
Problems Related to the VADs
The CEC had tested the VADs twice before the E-day: the first testing took place on 12 February 2017 and the second on 25 March 2017. In the course of the first testing problems related to the reading of fingerprints were registered, which were mostly rectified by 25 March. Notwithstanding this fact, there were a number of problems related to VADs on the E-day, including equipment failures. However, there was no official and reasoned statement in this regard by any of the election administration bodies. There
65 https://www.azatutyun.am/a/28407083.html
38 was no effective examination of the causes and impact of these disruptions either.
The Number of Manually Registered Voters by Means of Manual Entry of the ID Data was Considerable - 229.757 according to the CEC Official Data66 Disruptions of the VADs.
155 incidents of temporary disruption of the VADs from 136 polling stations in the territories of 35 TECs (nos 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 38) were registered.
Incompliance between the Electronic Voter Lists Printed by the VADs and the Paper-Based Voter Lists
The COI observers registered 22 incidents of incompliance between the electronic voter lists and the paper-based voter lists in 17 polling stations in the territories of 13 TECs (nos 1, 2, 3, 4, 5, 7, 8, 16, 17, 26, 27, 33, 35).
The COI observers registered 12 cases of incompliance between the number of actual voters and signatures in paper-based voter lists from 10 polling stations in the territories of 8 TECs (nos 3, 4, 5, 7, 9, 22, 23, 34).
2.4.4. SUMMARISATION OF THE RESULTS OF THE VOTE
The total number of violations during the summarisation of the results of the vote was 170 (about 9.8% of all the monitored violations) in 126 polling stations (8.2% of all the monitored polling stations).
Violations of the Working Procedures of PECs.
The COI registered 23 incidents of violations of the working procedures of PECs in 17 polling stations (nos 9/42, 9/7, 27/9, 3/20, 31/15, 31/55, 20/34, 7/13, 32/31, 4/22, 32/27, 3/17, 9/37, 28/2, 23/42, 3/14, 16/9 ). Only 13 of these cases were registered in PEC logs.
66 http://res.elections.am/images/doc/VAD.results02.04.17.pdf
39 Violations of the Procedure of the Summary of the Results of the Vote.
46 reports concerning violations of the procedures for counting and summarisation of the results of the vote were made concerning 35 polling stations in the territories of 17 TECs (nos 1, 2, 3, 4, 5, 7, 8, 9, 13, 17, 22, 23, 24, 27, 28, 29, 31), of which only 15 were registered in PEC logs. The violations in this group included 5 cases of violations of the sequence of counting of ballots; 5 violations of the procedure of taking the ballot out of the ballot box, announcing the vote and showing the ballot to the present; 1 case of unlawful annullment of the ballot; 7 cases of inclusion of unnecessary items in the envelope, 2 cases of failure to print a statement by the equipment or failure to provide it to those present; 9 cases of wrong counting and 2 cases of failure to properly record the baseline data and the results in the log; 13 cases of failure to provide an extract of the protocol to the present or to permit them to take picture of the protocol and 2 cases of violation of the procedure of packaging the voting items.
There were massive violations of the sequence of the steps during the summary of the results of the vote as prescribed by the Electoral Code. In particular, at first the statements from the VADs was printed and only after that the signatures in the signed voter lists were counted (the number of actual voters is a baseline data). By contrast, the Electoral Code prescribes first to count the signatures in signed voter lists, to record these data and only after this print the statement by the VAD.
Falsification of the Results of the Vote.
The COI observers registered 3 cases of falsification of the results of the vote, of which 2 occurred in the polling station no 2/11 and 1 – in TEC no 8.
The study of the concluding protocols from different polling stations revealed that in polling stations nos 5/2, 5/3, 5/6, 8/16, 8/26, the RPA (no 6) received 633 votes, while in polling stations nos 1/13, 2/27, 3/13, 3/14, 3/18, it received 596 votes. Such coincidences testify to the possibility of interference with the process in these polling stations.
Incompliances between the Total Number of Actual Voters Reflected in the VAD Statements and the Number of Signatures in the Signed Voter Lists.
The COI observers registered 22 cases of incompliance between the VAD
40 electronic lists and the signed voter lists in 17 polling stations. 20 of these cases were submitted to TECs as complaints, as well as reflected in the complaint submitted to the RA Central Electoral Commission on 7.04.2017.
2.4.5. VIOLATIONS OF GENERAL NATURE
76 other violations were registered during the stage of summarisation of the results of the vote in 66 different polling stations, including electricity cuts, giving extracts of protocols to observers, representing other observation missions prior to the drawing of the protocols; PEC members leaving the polling station prior to the summarisation of the results of the vote; filling in the protocol extract in parallel with drawing of the protocol; prohibition to make extracts or take pictures from the PEC log; unauthorized persons attempting to enter the polling station by force; failure to annul the ballots in envelopes containing other pieces of paper or with different marks; violation of the procedure for taking the ballots out of the ballot box; entering the baseline data into the PEC log in pencil; active interference of a proxy with the PEC work; disruption of the work of polling station cameras, etc. Only 20 of these cases were recorded in PEC logs.
2.4.6 VIOLATIONS OF OBSERVERS’ SUBJECTIVE RIGHTS
Violations of Observer Rights.
The COI observers registered various violations of observers’ subjective rights, of which 45 cases in 43 polling stations (2.8% of all the polling stations) concerned the right to observe. In several polling stations the right of observers to take part in the preparatory session of the PEC was violated; there were restrictions of the right to get familiarized with electoral documentation and freely move in the polling station, etc. Furthermore, only 4 of these violations (10%) were registered in the PEC logs.
Incidents of Pressure on Observers.
The COI observers reported 13 incidents of pressure on observers in 11 polling stations (nos. 15/32, 2/1, 9/55, 8/1, 5/17, 5/14, 10/4, 4/44, 10/53,
41 32/34, 32/4), including threatening with a knife, incidents of psychological pressure and threats to observers. Only one of these incidents was registered in the PEC log.
One incident of removal of a COI observer was recorded in 1 polling station. Later this decision was annulled.
Refusal to Record an Observer’s Observation.
The COI observers recorded in total 1023 cases of failure by PECs to register the observers’ observations in PEC logs, of which 1001 cases were confirmed from 485 polling stations in the territories of 38 TECs.
Violations of the Right of Observers to Take Pictures and/or Videos.
The COI observers made 4 reports concerning obstruction of their right to take pictures and/or videos from 4 polling stations in the territories of 4 different TECs (nos 3, 10, 15, 33).
Failure to Provide the Documents Prescribed by Law to Observers.
The COI observers made 2 reports concerning failure to provide the documents prescribed by law to observers from 2 polling stations in the territories of 2 TECs (nos 4 and 29).
2.4.7 PROBLEMS/VIOLATIONS OBSERVED IN THE AFTERMATH OF VOTING
Problems Related to the Publication of and Access to Scanned Signed Voter Lists.
On 4.04.2017 the COI issued a statement declaring that the links to the scanned signed voter lists posted on the CEC website were disfuctional until 19.00p.m.67 On 6.04.2017 the CEC issued a clarification, according to which the difficulties of downloading the signed voter lists had to do with the heavy Internet traffic and that the lists were also published in an alternative format.68
67 https://www.citizenobserver.am/en/news/view/zzdv2017-04-04-19-18 68 http://res.elections.am/images/doc/mamul33.pdf
42 It is also noteworthy that the alternative link was on the personal cloud storage service of David Harutyunyan, the RA Government Chief of Staff.69 In other words, the signed voter lists were first made available to David Harutyunyan and only afterwards uploaded by him to the mentioned cloud storage service and made public from there.
According to the CEC Decision No 163-A dated 9.04.2017, 23 MPs, i.e. ¼ of the elected MPs recused themselves.70According to the media publications made prior to the publication of the CEC decision, 35 MPs filed applications on self-recusal.71 In conformity with another media publication, 12 MPs declared that they had not filed any applications on self-recusal.72 Furthermore, the media widely covered the fact that the biggest number of MPs filing applications on self-recusal were from Tsarukyan Alliance (23), which was followed by a statement from 12 of these MPs denying the fact that they had filed an application on self-recusal. This means that either forged applications had been submitted on behalf of these people or that applications on self-recusal had been obtained from them in advance to later use according to the moment’s necessity. This issue was also raised by the RA Constitutional Court in its Decision no CCD-1364 (paragraph 13).
Prior to the Constitutional Referendum in December 2015 the COI created the website ‘Control Your Vote,’ which was a mechanism intended for enabling the voters absent from Armenia to voter impersonation by means of prior registration of voters in this website.
Following the legislative amendment of 20.10.2016 whereby the signed voter lists were to be made publicly available, the COI improved the ‘Control Your Vote’ system by introducing an automated software for detecting incidents
69 02.04.2017-Chief of Staff of the Government of the Republic of Armenia, minister 70 http://res.elections.am/images/dec/17.201_A.pdf 71 http://armlur.am/685760/ 72 http://www.panorama.am/am/news/2017/05/03/%D5%84%D5%B8%D6%82%D5%AF%D 5%B8%D6%82%D5%B9%D5%B5%D5%A1%D5%B6-%D4%BE%D5%A1%D5%BC%D5%B8 %D6%82%D5%AF%D5%B5%D5%A1%D5%B6/1771302, http://yerkirmedia.am/1political/ carukyan-dashinq-inqnabacark-hrajarvel/ 12 out of 23 MPs from Tsarukyan Alliance of Parties having submitted self-recusals demand abolition of their applications: RFE / RL, May 3, 2017,May 3, 2017,https://www. azatutyun.am/a/28465916.html “tert.am”, May 3, 2017, http://www.tert.am/am/news/2017/05/03/saqunc/2359976
43 of voter impersonation for voters registered in the system in advance. The use of the software yeilded preliminary data, which proved inaccurate at the verification stage. Later it became clear that the error was due to the discrepancies between the electronic voter lists (uploaded to VADs) and the signed voter lists since voter numbers were in many cases different.
The COI software, which was to automatically ensure the digitalization of the signed voter lists with a view to rendering them searchable, also worked with a big percentage of error.
As a result, it was decided to digitalize the signed voter lists manually, which will enable a more multifaceted and complete study of these lists to eliminate the doubts related to any possible fraud in connection with voter impersonation, as well as voter lists in general. In view of the fact that the data are currently being digitalized manually, the process is time-consuming. Once this work is finalised the results of the analysis of the signed voter lists will be published.
2.4.8. SOME DATA PRODUCED BY THE COI ANALYTICAL TEAM ON THE BASIS OF THE VOTER LISTS
• The turnout of the military in the total number of the military included in the lists of military units was 86.2 %.73 • The number of voters in the polling stations opened in penitentiary institutions was 1533, while the actual number of voters in penitentiaries was 1360, i.e. 88.8 %. • Of the 751 voters having the right to vote in mental institutions 734, i.e. 97.7 % voted. The analysis of the voter lists posted on the website of the police on the 40th and 4th days preceding the day of voting, the following violations and/or falsifications were revealed:
73 According to the corresponding methodology, the COI calculated the number of military servicemen included in the lists of military units and the number of soldier voters participating in the voting. This methodology, as well as the quantitative data, are not published for national security considerations.
44 • 208.017 names, family names and patronymics repeated from 2 to 51 times. This observation, which was also reflected in the complaint of the ANC-PPA Alliance to the CEC, was refuted by the CEC by showing the photographs and passport data of only a few voters. • A comparision of the voter lists last published by the police ahead of the Constitutional Referendum on 06.12.2015 and the 02.04.2017 elections to the National Assembly revealed that 106.084 citizens were registsred in addresses that did not exist during the Constitutional Referendum of 06.12.2015.74
2.4.9. OBSERVATION OF TEC ACTIVITIES
In the framework of the new COI tactics, the organisations carrying out the observation mission, deployed observers also in TECs in the period of 2-7 April 2017. This tactics revealed the complete dependence of TECs from the CEC and inability of the former to act independently and autonomously from the CEC. It was also possible to reveal with the help of observers that contrary to what was forseen by the Electoral Code, TECs operated essentially as the CEC’s subdivisions. Under various pretexts TECs obstructed the exercise by observers of their observation rights (demanded that observers vacated the TEC premises on the pretext that they had no right to be there when there are no hearings).75 All the TECs informed the COI observers in the period of 4-7 April 2017 that they had no other duties besides the scanning of the signed voter lists and receipt of the complaints of observers, observation missions, proxies, as well as the applications of parties/party alliances on annulling the results of the vote in a particular polling station or recounts. The TECs repeated the same justifications after they had sent all the electoral documentation under their disposal to the CEC by 7.04.2017, insisting that the only duty they had was taking care of the salaries of TEC members. This was the situation nothwitstanding the fact that more than 300 complaints were submitted on behalf of the COI observers to different TECs.
74 The CEC’s only argument concerning new addresses was that these new addresses were registered aer December 6,2015 constitutional referendum and before April 2, 2017 Parliamentary Elections. 75 Such incidents were recorded in Territorial Electoral Commissions nos 3, 11, 12 and 14.
45 There were also cases when observers were forcibly removed from TEC premises.76 In some cases the TEC members locked the doors from inside and did not allow the observers to be present on the premises occupied by TECs and to observe their activities.77 In some cases the TEC members explained that the TEC had no hearing, nor did it perform any other function to allow the observers to observe them or declared that their working day was over and left.78 However, the observers did not leave the TEC premises and reported that several hours later TEC members returned to their offices. The observers also recorded that TECs took no action in the area of examining the complaints submitted to them in the period observed. The observers also registered facts when TECs referred the complaints to the CEC in order to obtain the latter’s position in their regard.
76 3rd and 14th Territorial Electoral Commissions 77 12th Territorial Electoral Commission 78 11th and 27th Territorial Electoral Commissions
46 3. ELECTION-RELATED COMPLAINTS
3.1. BRIEF SUMMARY OF THE PROCESS OF COMPLAINTS
One of the special features of the COI is the initiation of a process of complaints and strategic litigation with a view to protecting observers’ subjective rights and the general (objective) electoral rights on the facts of violations observed in the course of elections. The legal team of the observation mission initiatied a process of complaints on the basis of the facts of violations observed and reported by observers during the 2017 parliamentary elections. On 3 and 4 April 2017, 309 complaints were submitted to 37 TECs on behalf of observation organisations and observers on the facts of both violations of subjective electoral rights and general (objective) electoral rights. Of these 160 complaints concerned violations of objective electoral rights, and 149 – subjective. No complaints were submitted to TEC 6 given the fact that the three orgnisations monitoring the elections within the COI had no observers in the polling stations located in the territory of TEC 6.79 The TECs refused to institute administrative proceedings on the basis of the overwhelming majority of complaints submitted on the facts of violations registered during the parliamentary elections held on 2 April 2017 (99 decisions) on the pretext that neither the observers nor the observer organisations had a standing to bring such complaints relying on paragraph 3 of Article 48 and sub-paragraph 4 of paragraph 1 of Article 49 of the RA Electoral Code. Accordingly, no effective examination was carried out by TECs of the facts reflected in these complaints. In those few cases when TECs did examine the submitted complaints (in such cases the examination was done on the facts of violation of the subjective rights of observers), it was neither comprehensive nor objective but purely formal.
79 Observation mission in the polling stations of 6th electoral district was carried out by another organisation.
47 3.1.1. ON THE LEGAL STANDING OF THE OBSERVATION ORGANISATIONS AND OBSERVERS
● On the Legal Standing of the Observation Organisations and Observers Bringing Complaints on the Violations of Objective Electoral Rights.
Refusal by TECs to institute proceedings on the basis of absence of legal standing on the part of observation organisations and observers to bring complaints (on objective violations) to challenge the actions/inaction of PECs, as well as the narrow and arbitrary interpretation of law, including the Electoral Code given by TECs is contrary to Article 48 of the RA Constitution and Article 3 of Protocol No 1 to the European Convention on Human Rights in view of the fact that anyone having a right to vote must also have a right to an effective remedy against violations of this right. In particular, paragraph 3 of Article 48 of the RA Electoral Code prescribes that anyone may challenge the decisions/actions/inaction of electoral commissions if s/ he believes that his/her subjective right prescribed by the Electoral Code has or may be violated. This right includes the right of every citizen to challenge the violations of objective electoral rights, the decisions/actions/ inaction of electoral commissions given the fact that electoral violations may in their entirety and/or by their nature have a direct impact on the vote of each voter. Hence, the complaints submitted by any subject of electoral relations, including an observer or observation organisation on the grounds of violations of objective electoral rights have to be examined. The opposite will lead to the disruption of the essence of electoral rights. ● On the Refusal to Institute Administrative Proceedings in Relation to Complainant Organisations: the Legal Standing of Non-Governmental Organisations.
In conformity with the decisions of TECs, non-governmental organisations do not have a legal standing to bring complaints given the fact that the rights of non-governmental organisations as prescribed by Articles 30 and 31 of the RA Electoral Code, concern accreditation for carrying out an observation mission only. It was also stated in TEC decisions that the RA Electoral Code does not foresee any other right besides the right to accreditation.
48 The refusal to institute administrative proceedings on this ground is contrary to the RA Electoral Code. Article 30 of the RA Electoral Code confers on the non-governmental organisations the right to carry out an observation mission during elections80, which a given organisation exercises through its accredited observers. The grounds concerning the legal standing of an observer to bring electoral complaints apply equally to observation organisations given the fact that the latter have full standing in bringing electoral complaints. The right to engage in an observation mission is a public function aimed at ensuring the transparency of elections and contributing to proper conduct of elections. The effectiveness of the above public function is conditioned inter alia by the possibility of an observation organisation to bring election- related complaints (legal standing) on both objective and subjective electoral rights, especially given the fact that the violation of observers’ rights entails a violation of the right to observation of an organisation, as well as the right to seek and receive information as prescribed by Article 42 of the RA Constitution and Article 10 of the Convention.
The fact that non-governmental organisations have a legal standing in cases concerning the protection of collective or community rights within their statutory goals (actio popularis) 81 is confirmed by the Decision No-906 of the RA Constitutional Court dated 07.09.2010, the Decision no CC/3275/05/08 of the RA Cassation Court dated 30.10.2009, as well as the Recommendation No (2004)20 of the CoE Committee of Ministers on the Judicial Review over Administrative Acts dated 15.12.2004, the positions of which apply also to the right to bring complaints (the legal standing) on electoral violations.
3.1.2. ON THE VIOLATIONS OF SUBJECTIVE ELECTORAL RIGHTS OF OBSERVERS
The overwhelming majority of the violations of the subjective rights of observers was manifested in the refusal by PECs to record an observer’s
80 Organisations that have statutory goals for at least one year preceding the E-Day include issues of democracy and human rights protection and which do not support candidates or parties participating in elections. 81 One of the statutory goals of the monitoring organisations is the protection of democracy and human rights, the protection of collective or community-specific interests, as well as conduct of oversight over the legitimacy of elections and referenda, protection of the rights of others, the collective rights of a particular group.
49 observation in the PEC log, in which connection TECs’ assumptions/positions were literally outlandish.
● On the Refusal to Record the Observers’ Observations in PEC Logs.
In the overwhelming majority of decisions TECs found that the observer- complainants failed to invoke any fact of violation of their subjective rights in their complaints. Instead, in the submitted complaints they merely alleged violations of the RA Electoral Code that had nothing to do with their rights as observers. TECs obviously overlooked the fact that these complaints challenged inter alia the actions/inaction of PECs on the grounds of violation of observers’ subjective rights given the fact that the violations recorded by observers were not recorded in PEC logs, which resulted in the violation of their subjective rights prescribed by Article 67 of the RA Electoral Code.
3.1.3. THE DELIVERY OF COMPLAINTS TO TECS AND THE PROCESS OF THEIR HANDOVER
In the light of the requirement of the RA Electoral Code to hand-deliver the complaints to the relevant electoral commission within the set deadline, on the days following the elections (3 and 4) the COI started delivering the complaints to relevant TECs. Given the limitations of the mission’s resources, this process was organised in the following manner: one person was delivering complaints to several TECs starting from 3 April, and on 4 April from 9.00am to 11.00am. Due to some technical obstacles, it was not possible to deliver some complaints in a timely manner (the duration of delays was 30-40 minutes). Three TECs (nos 4, 11 (in case of part of the complaints) and 13) returned the submitted complaints without examination on the pretext that they were submitted 30-40 minutes later than the set deadline when these delays were due to the same or another TEC creating artificial obstacles in accepting the complaints. It appeared that in order to accept the complaints TECs required to enclose certain documents with complaints and refused to accept them when these documents were not attached. Some TECs refused to accept the complaints on the pretext that the people delivering the complaints failed to show POAs corroborating that they were
50 authorized to deliver the complaints. Other TECs demanded passports from these people on the pretext that they had to register their data contrary to the requirements of the law. It was only after lengthy explanations and justifications that these complaints were accepted. Some TECs refused to give a receipt (proof) on accepting the complaints. In many cases instead of immediately accepting the complaints, TEC members started getting familiarized with them and the list of enclosed documentation and wrote the time of finalising the process of such checks on the receipt, which delayed considerably the process of handover. The above problems are artificial and not prescribed by law given the fact that TECs have no right to refuse to accept the complaints. Apart from that, on different pretexts TECs artificially delayed the process of accepting the complaints, as a result of which in several cases complaints were marked by TECs as submitted after the set deadline.
3.1.4. NOTICES ON TEC SESSIONS AND TIMELIMITS FOR EXAMINING THE COMPLAINTS
● In a number of cases TECs notified the complainants on the date and time of the sessions convened for examining the complaints by phone on the same date as the session (7.04.2017) 1-2 hours prior to the session.82 In all the listed TECs the sessions were appointed at the same time – at 12.00pm on 7.04.2017– while the observers were notified of the time of the sessions 1-2 hours prior to the session (except for four TECs).83 Following the receipt of notifications of the forthcoming sessions, the observers’ representatives made oral motions over the phone on postponing the sessions, justifying it with the necessity to ensure the observers’ participation in these sessions, as well as by the need to give time to observers’ representatives to reach the
82 Territorial Electoral Commissions no 10, 12, 15, 16, 19, 23, 24, 29 and 33. 83 TEC 10, which aer postponing the April 6, 2017 hearing notified about the hearing to be held at 10:15am on April 7, 2017 at 9:50am on the same day. TEC 19, which notified about the hearing to be held at 16:00 on the same day at 13:00. TEC 32 (town Gyumri) notified about the hearing to be held at 10:30am on April 7, 2017 at 22:00on April 6. TEC 38 (town Ijevan) notified about the hearing to be held at 12:00pm on April 7 at 22:49on April 6, 2017.
51 relevant region from the capital Yerevan. These motions were not granted and the sessions were held in the absence of the complainants or their representatives in violation of the requirements of due notice and depriving them of the right to be heard and to proper administrative process. It is obvious that these actions were taken with the direct intent to exclude the participation of observers and their representatives from these sessions. This conclusion is also confirmed by the fact that neither the observation organisations nor observers were notified of the sessions appointed on 7.04.2017 in the capital Yerevan by 7 out of the 9 TECs located in Yerevan, considering the fact that the complainants’ representative were in Yerevan and could participate in sessions convened in Yerevan even if notified of them 1-2 hours prior to these sessions. TEC no 10 notified of one postponed session 25 minutes prior to the session.84 Two chairpersons of TECs confirmed that they had appointed the sessions on the same date and hour at CEC’s advice.85 ● 13 TECs Never Notified the Complainants of the Forthcoming Sessions and/or Examination of the Complaints and Neither Did They Notify the Complainants of the Adopted Decisions86. By faling to duly notify the complainants of TEC sessions, the TECs prevented the complainants from receiving any information on the examination of the submitted complaints օռ the adopted decisions. In some cases those sessions in TECs, which the COI lawyers managed to attend, were being postponed without any reason or the lawyers were told that these sessions would not take place. Later these sessions were held without notifications (For example, in TEC 1 the session appointed on 8.04.2017 was postponed on the pretext that one TEC member felt bad. However, this session was held at a later hour without any notification. In TEC no 5 the lawyer arriving for a session appointed at 12.00pm was told
84 The hearing at TEC 10 was held on April 6, 2017 with the participation of the applicants. It was subsequently postponed for consideration of the submitted motions, provided that relevant notification would be provided in a reasonable timeframe. This, however, was not ensured. 85 During the phone conversation with the lawyers of the COI the representatives of TECs 2 and 29 informed that the days and hours of the hearings of the complaints in all the TECs were agreed with the CEC (evidence is available). 86 Territorial Electoral Commissions no 1, 2, 3, 4, 5, 7, 8, 11, 13, 17, 34, 36 and 37.
52 that the session was not going to take place. However, this session was also held at a later hour). Due to failures to notify the complainants in a duly and timely manner, as well as misinformation by TECs, the complainants’ representatives were able to take part in sessions of only 10 TECs.87
3.1.5. SESSIONS AND DECISIONS OF TECS ON THE SUBMITTED COMPLAINTS
● In a number of cases TECs refused to institute administrative proceedings on the pretext that POAs on behalf of certain observers were not provided.
However, failure to submit a POA by a complainant’s representative must be followed by a procedure whereby this POA is requested and provided additionally within a reasonable timeframe rather than a refusal to institute administrative proceedings.88 The refusal to institute proceedings by TECs was not lawful and contradicted the requirements of Article 49 of the Electoral Code, Article 24 of the RA Law on Legal Acts and Articles 61(1) and 78 of the RA Constitution.
● In some cases the grounds on which TECs refused to institute administrative proceedings were exclusively the explanations provided by PEC chairpersons.89
It was stated in these decisions that the review of PEC logs had revealed that the observers had never demanded the inclusion of their observations in those logs. However, it is obvious that the review of PEC logs can never be regarded
87 Territorial Electoral Commissions no 9, 10 /during the first hearing/, TECs no 11, 14, 21, 26, 28, 31, 20 and 22. 88 Legal grounds: Articles 61(1) and 78 of the Constitution of the Republic of Armenia; paragraph 4 of Part 1 and Part 2 of Article 49 of the RA Electoral Code; Part 7 of Article 24 of the RA Law “On Legal Acts.” 89 April 8, 2017 decisions No 8-A, 9-A, 10-A of 8th Territorial Electoral Commission, April 7, 2017 decisions No 18-A, 19-A of the 9th Territorial Electoral Commission, April 7, 2017 Decisions No 14-A, 15-A of the 16th Territorial Electoral Commission; April 7, 2017 decision No 7-A of TEC no 3; April 7, 2017 decisions No 23-A and 25-A of TEC no 20; April 7, 2017 decisions No 8-A, 9-A and 11-A of the TEC no 7; April 7, 2017 decision N2-A of TEC no 2; Decision No 9-A of TEC no 29.
53 as proof of failure by observers to put forward such a demand. It was also stated in TEC decisions that TECs made oral inquiries to the chairpersons of relevant PECs90 and concluded that any demand of observers to write down their observations in PEC logs was met, while absence of observations in logs meant that the observers had not put forward such a demand. On the basis of the aforesaid TECs decided that the claims raised by the complainants were groundless and the facts of violations – non-existent. Considering the aforesaid it becomes obvious that TECs lacked impartiality since they deemed the fact of failure by an observer to demand inclusion of his/her observation in the PEC log confirmed by explanations of PEC chairpersons only and refused to seek for other evidence, such as interviewing other witnesses, such as proxies, observers, media representatives, visitors, other PEC members. This was done in violation of the provisions of the RA Law on the Basics of Administration and the Administrative Proceedings, which require that administrative proceedings are held in a comprehensive, complete and objective manner. This fact comes to prove that in many cases TECs held administrative proceedings without notifying the participants of these proceedings, as a result of which the latters’ rigths to be heard and to proper administrative proceedings were violated. In other words, TECs decided not to istitute administrative proceedings on the basis of the submitted complaints. However, the aforesaid interviews of PEC chairpersons are components of administrative proceedings. Furthermore, the above inquiries were made to PEC chairpersons, whereas admitting the facts of violations would entail liability for these officials.
● TECs decided that violations invoked in the submitted complaints are not violations of the voting procedure or of the Electoral Code.
In some cases by their decisions TECs assessed the nature of invoked violations and dismissed the complaints on the grounds that the complaints contained no facts of violations of the procedure of voting or of the Electoral Code,91 stating that failure to note such a violation in the PEC log did not entail a violation of an observer’s right.92 For example, in its Decision no 13-A TEC no
90 In one case the inquiry was sent not only to the chairman but also to the secretary of the same commission. In exceptional cases, there were references to the written explanations of chairpersons of the precinct electoral commissions in decisions. 91 07.04.2017 Decisions N9-A, 13-A and 14-A of TEC no 29; 07.04.2017 Decisions N6-A, 7-A and 9-A of TEC no 12. 92 TEC no 12 by its decisions No. 7-A (the commission found that posting of the photos
54 29 found that an observer did not have a right to take pictures of the electoral documentation (the case related to photographing the PEC log whereas there is no restriction by law to take a picture of the PEC log) despite the fact that it also noted that the observer exercised a right conferred by the RA Electoral Code (given the fact that the permission was given minutes later).
Although TECs refused to institute proceedings on the pretext that neither the observers nor observation organisations had legal standing, they sometimes touched upon the claims raised by these complaints, stating, in particular that the facts invoked by the complaints could not have any impact whatsoever on the results of voting, never giving any reason as to how they arrived at such a conclusion.93
● TECs’ approach was formal and arbitrary in deciding on the admissibility and merits of the complaints.
TECs overlooked the submitted motions or they were rejected by a unilateral decision of TEC chairpersons.
In some cases TECs decided to reject the complaints given the fact that the observers having submitted them were not registered in PEC logs94, and could not, therefore, observe any violations. The observers, however, were present at polling stations and carried out an observation mission. Failure to register the observers could only testify to failure by the chaipersons and secretaries of PECs to properly discharge their functions.
● In 6 cases TECs adopted decisions, by which they motioned the Central Electoral Commission to invalidate the certificates of accreditation of 9 PEC chairpersons.95
of the well-known representatives of parties / allianced in the premise of the precinct cannot be qualified as a violation of the voting procedure) and 9A (the commission found that election bribe distribution is not a violation of the voting procedure defined by the Electoral Code of Armenia and rather has characteristics of Article 1542 of the Criminal Code of the Republic of Armenia. Therefore the TEC no12 did not examine the complaint but sent it to the RA Prosecutor’s Office). 93 For example the 06.04.207 decision N8-A of TEC no 36. 94 TEC 20, Kristineh Sahak Lazaryan; observer at polling station N 20/22. TEC 20, Ani Hovhannisyan; observer at polling station N 20/17. TEC 20, Anna Vardanyan; observer at polling station N 20/12. 95 Decision N11-A of the TEC 17; Decision N12-A of the TEC 19; Decision N19-A of the TEC 15; Decision N9-A of the TEC 11; Decision N10-A of the TEC 14; Decision N10-A of the TEC 26.
55 Moreover, in case of 5 decisions the motions were submitted on the grounds that the relevant PEC chairpersons failed to ensure that the observers’ observations on the violations of the procedure of voting were included in the logs (including their observations on the existence of campaign materials in PECs). In one case the motion was based on the restriction of the right of an observer to take part in the preparatory session of the PEC.
It should be emphasized that it is not clear what reasons and guidelines governed TECs in motioning the CEC to invalidate the accreditation certificates in the above few cases in a situation when in the majority of cases the refusal by PECs to include an observer’s observation in the PEC log was not assessed as violation of the subjective rights of observers and it was on this ground that the institution of administrative proceedings was refused.
● In five cases the TECs referred the complaints to the law enforcement bodies while the relevant violations (vote-buying, pressure and intimidation of observers) were assessed as not having any impact on the results of elections.96
● The decision of TECs did not refer to the motions submitted to the relevant commissions.
In all cases when observation organisations were able to participate in TEC sessions, they submitted motions to TECs on: 1) examining the logs of PECs located in the territory of the relevant TEC; 2) obtaining and/or examining the videos of the process shot in the PECs located in the territory of the relevant TEC; 3) enclosing the existing evidence to the materials of the administrative case and examining them97, 4) inviting the members of PECs and other particiants of the electoral process as witnesses. Although it was not possible to ensure the participation of the representatives of the observation organisations in TEC no 18, the above motions were nevertheless submitted to the relevant TEC.98 ТEC decisions did not touch upon the submitted motions, the TECs refused to consider these motions, which resulted in a violation of
96 Decision N12-A of the TEC 9; Decision N9-A of the TEC 12; Decision N10-A of the TEC 8; Decision N18-A of the TEC 2; Decision N8-A of the TEC 5. 97 In exceptional cases a motion for attaching evidence to the case file was not submitted. 98 Written motions were also submitted to a number of TECs located in Yerevan. However, taking into account that in most of the cases the applicants were not notified about the hearings of territorial commissions based in Yerevan, it is not clear whether examination of complaints was made by the commissions by the date of submission of motions or not.
56 the requirements of comprehensiveness, completeness and objectiveness of the administrative proceedings, as well as of the complainants’ rights.99
● TECs adopted their decisions in such timeframes that prevented the CEC from examining the appeals against these decisions prior to the summarisation of the results of elections and assessing them while summarizing these results.100
All of the TEC decisions on the complaints submitted by COI observers and organisations, with very few exceptions, were adopted on 07.04.2017. TECs no 1 and 8 adopted the decisions on the submitted complaints on 08.04.2017. Although these decisions were dated 07.04.2017 and 08.04.2017, in many cases they were posted in a visible place on the premises of the relevant TEC much later.101 Moreover, as a rule the administrative buildings where TEC premises were located, were closed on 08.04.2017 and 09.04.2017 given the fact that these were non-working days, which barred any access to these decisions.
● The complaints submitted later than the set deadline were not considered at all.
In case of three TECs (nos 4, 11 (concerning part of the complaints) and 13) the submitted complaints were returned without consideration on the pretext that they had been submitted 30-40 minutes later than the set deadline in a situation when the delay was conditioned by the creation of artificial obstacles in accepting the complaints by the same or another TEC.
In these cases TECs issued no notices on the examination of the complaints. The fact that some complaints were submitted 40 minutes later was directly conditioned by the unlawful actions of TEC no 5 given the fact that prior to delivering these complaints to TEC 4 the representative of complainants delivered complaints also to TEC no 5. The latter TEC accepted the complaints with a 40-minute delay due to artificial obstacles. On 5 April, the observers’ representative motioned TEC no 4 to deem the missed deadline for a good
99 Articles 44, 45 and 75 of the RA Law “On the Basics of Administration and Administrative Proceedings”, the right of proper administration guaranteed by Article 50 of the Constitution of the Republic of Armenia. 100 Except for four decisions, which were made on April 5 and 6, however, their access was ensured later. 101 Decisions of TECs 1, 3, 9, 12, 15, 16, 19, 24, 29, 33, 34, 35 and 37.
57 reasom by indicating the reasons why these complaints were submitted late. At the same time, it was stated in the said motion that there was evidence of the artificial obstacles set by TEC no 5, which were submitted on April 6. At the same time, it was proposed that the person responsible for the delivery of the complaints to TECs nos 4 and 5 be involved in the administrative proceedings with a view to providing explanations. The relevant evidence was submitted to TEC no 4 on 6 April (by 3 electronic carriers). This motion was not considered by TEC no 4 and the complaints were returned on 5.04.2017 with a note and were recieved by the complainants on 10.04.2017 by post.102 The stated reason for returning the complaints without examination was the provision of the RA Electoral Code, according to which complaints submitted after the set deadline will not be examined and are returned to the complainant with a note stating the reasons of return. It was also stated in the decisions that the RA Electoral Code had no provision on ‘missing the deadline for a good reason.’ Nevertheless, the possibility of restoring the deadline had to apply to the extent to which the requirements of the RA Law on the Basics of Administration and the Administrative Proceedings applied to the administrative proceedings held by electoral commissions. A similar case was recorded in TEC no 13. However, in other cases the norms of the same Electoral Code were applied with a diametrically opposite interpretation. For example, the Decision no 162-A of the RA Central Electoral Commission dated 09.04.2017 recorded that despite the fact that the complaint on voter impersonation had been submitted in breach of the set deadline, the complaint was examined by TEC no 33, and a decision was adopted, which corroborated that voting instead of the complainant occurred in polling station no 33/39. Another incident testifying to the application of double standards was the case of ARF party having submitted a complaint to the CEC which was readdressed to TEC no 17 (Decision of the CEC no 162-A dated 09.04.2017) whereas according to paragraph 3 of Article 49 of the RA Electoral Code any complaint submitted to a commission, which is not competent to decide on it, must be returned to the complainants without examination. TEC no 11 returned part of the complaints. The relevant complaints were not signed
102 Although the letter of TEC no 4 was dated 05.04.2017, there was a statement among the returned documents according to which the evidence was submitted by the applicants on 06.04.2017 (there is a note concerning the date and time of submission), which makes obvious that the motion to return the complaints of applications could be made by TEC no 4 only aer 06.04.2017 or on the same day, but not earlier. Therefore, the statement was backdated.
58 and the TEC suggested that they be signed following noting the shortcomings of the complaints in the course of acceptance thereof. A COE staff member brought the complaints to the office. However, when s/he took them back after ensuring that they were signed, it appeared that TEC no 11 found they were submitted in breach of the deadline.103
3.1.6. ON FAILURE TO EXAMINE THE FACTS OF VIOLATIONS OR PARTS THEREOF REFLECTED IN THE COMPLAINTS BY THE INITIATIVE OF TECS
When TECs adopted decisions on refusing to institute administrative proceedings on the basis of the complaints of the COI observers and observation organisations, some TECs simultaneously adopted separate decisions on examining the facts of violations (or a part thereof) raised in the complaints on their own initiative.104 Never were these proceedings held with the participation of the complainant organisations or observers and neither were the latter notified of the decisions taken as a result. At the same time, TECs failed to obtain information about the relevant violations from any other source (the witness observers, media representatives, proxies, visitors, other PEC members, voters, etc.) and neither were they involved in the proceedings. TECs also failed to examine the footage from the relevant polling stations.
The institution of administrative proceedings on their own initiative pursued a formal aim to merely demonstrate that the invoked facts of vioations were duly examined. The formal and ineffective nature of the proceedings is best corroborated by the adopted decision, the examination of which demonstrates that they were adopted with the sole aim of registering the fact that the invoked violations had no impact whatsoever on the results of the vote.105 These decisions failed to meet the minimum requirements of being grounded or well-reasoned. All of them stated that the examined factual circumstances had no impact whatsoever on the results of the vote. At the
103 The complaints to TEC no 11 located in Ararat region were re-submitted an hour later (which was necessary to bring back the part of the complaints to Yerevan, to ensure their signing and to re-submit them). 104 April 5 decisions were made by TEC 37. April 6 decisions were made by TEC 13. April 7 decisions were made by TECs 3, 5, 7, 9, 10, 11, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 31, 33, 35, 36 and 38. April 8 decisions were made by TECs 1, 2, 8 and 14. 105 The decisions were typically posted in the TEC premises.
59 same time, the TECs refuted the facts of violations by the oral responses of PEC chairpersons, which were the foundation of their decisions.
3.1.7. ՕN THE OBSTACLES TO THE RIGHT TO APPEAL THE TEC DECISIONS
A very serious obstacle in terms of the right to appeal the TEC decisions was the absence of due notices on the appointment of TEC sessions, as well as on the adoption of decisions in these sessions, which rendered the acquisition and appeal of these decisions within the set deadline practically impossible.106
The timing of adoption of these decisions by TECs and their posting on the wall on the TEC premises was totally unpredictable for the complainant organisations and observers. Even when the observers’ representatives were notified of the appointed sessions, this itself did not guarantee that they were notified of the adoption of the decision during the same session,107 as well as its posting on the premises of the TEC108 (i.e. at least the timing of their posting by TECs)
It should be noted that the legislature’s choice of ensuring access to these decisions by means of posting them on the premises of TECs, considering the extremely limited timing for their appeal, does not pursue a legitimate aim and was not proportionate in a situation when after adoption these decisions could have been posted on the CEC website (in the likeness of the decisions related to the decisions of TECs on the results of voting). This regulation implies that in order not to lose the very limited deadline the complainant must keep guard (also during nighttime) within at least 24 hours after the adoption of the decision in the relevant TEC in order to obtain the decision and not to lose the less then 3-day timelimit for appealing it. It is obvious
106 According to Part 6 of Article 47 of the Electoral Code, the administrative act adopted by territorial electoral commissions enters into force from the moment of its publication at the meeting. 107 In a number of cases the meetings were postponed and the decisions were adopted during other hearings. 108 The new Electoral Code adopted on May 25, 2016 unlike the old one adopted on May 26, 2011, no longer envisages an obligation for territorial electoral commissions to send a short message about adoption of an administrative act aer its posting on the premises of the commission in a visible for everyone place.
60 that not only the prescribed provisions do not conform to the principle of legal certainty as prescribed by Articles 1 and 79 of the RA Constitution but also Article 61 of the Constitution on the right to an effective judicial process, Article 48 – the right to suffrage and the right to an effective remedy as set in the ECHR, Protocol 1(3) and Article 13 ECHR. Furthermore, the 2 days following April 7 were non-working days and the buildings where TECs were located were normally closed without any chance of access to these decisions. As regards the obligation to send the decision to the complainants, relevant TECs posted the administrative act to the participants of the administrative proceedings within three days having enclosed the postal receipt to the case. In other words, the deadline for appeal may be expired even at the moment of posting the decision. Therefore, this regulation does not guarantee the right to appeal either.
3.1.8. THE PARTICIPATION AND INTERFERENCE OF THE CEC WITH THE ACTIVITIES OF THE PECS AND TECS: ABSENCE OF INDEPENDENCE ON THE PART OF TECS
Apart from the fact that the reasons stated in TEC decisions are literally identical (which is impossible if these decisions are not adopted from one and the same center) in one case (in two decisions adopted by TEC no 30) it was registered that the TECs were in possession of a prewritten template for rejecting the institution of administrative proceedings, which was most probably foreseen for all TECs in view of the fact that there was an ellipsis in the place of the TEC number and name of the complainant.109 Apart from this, the templates contained justifications in case the complainant is a non-governmental organisation, and this text was identical in the adopted decision. These facts prove that the CEC orchestrated the TECs in the creation of artificial obstacles for observers and their representatives in taking part in the examination of their complaints, lack of effective examination of the facts of violations and their impact assessment on the results of voting, as well as lack of independence of TECs.
The examination of the complaints in TECs was purely formal in nature, TECs had prewritten decisions at their disposal, which were simply read
109 05.04.2017 decisions N5-A and 6-A adopted by TEC 30.
61 out during sessions and adopted without any changes. No action was taken to examine the cases on their merits. This is testified by the fact that the motions submitted by the representatives of the observers and observation organisations concerning inviting witnesses, examining PEC logs, the footage from polling stations, as well as the submitted evidence were either declined by TECs or not admitted being qualified as new complaints.110 There was no word about the submitted motions in the decisions themselves presumably due to the fact that the drafts of these decisions had been prepared in advance and not modified. Although in some cases it was possible to ensure the participation of observers who provided explanations on the violations reported by them, these were not reflected in TEC decisions either.
3.1.9. ON THE COMPLAINTS SUBMITTED TO THE CEC AND EXAMINATION THEREOF
Prior to 09.04.2017 when the CEC convened a session to sum up the results of the 2017 parliamentary elections, the observation organisations managed to obtain part of TEC decisions and submit 67 appeals on the decisions adopted by 18 TECs (nos 2, 5, 9, 10, 11, 14, 18, 20, 21, 22, 23, 25, 26, 27, 28, 30, 31, 32, 36)111. Part of these appeals were submitted on 8 April while the other part – on 9 April.
It was impossible to obtain the decisions of a number of TECs within three days after they were pronounced in TEC sessions and appeal them to the CEC within a three-day period considering the fact that these delays occurred for reasons beyond the power of complainants and clearly appeals could not have been written on the basis of presumptions. Nevertheless, the CEC denied admissibility and returned the appeals brought against the decisions of TECs 1, 3, 9, 12, 15, 16, 19, 24, 29, 33, 34, 35, 37, 38. 112 The
110 Only in one case an incomplete examination of the evidence was carried out. 111 The submitted complaints were merged by the TECs and decisions were adopted concerning a number of complaints at once. 112 Dates of complaints lodged with the CEC per TECs: TEC 1 - 18.04.2017 TEC 3 - 11.04.2017 (additional materials were submitted on 12.04.2017) TEC 9 - 10.04.2017 (complaint was filed against the inaction of the precinct electoral commission; the CEC ruled that this complaint should have been submitted to the corresponding TEC instead of the CEC)
62 stated reason was that these appeals were submitted after the set deadline. In the meantime, the CEC refused to admit the appeals for the stated reason that they were submitted on a non-working day (despite the fact that on that very non-working day the CEC sat in a session summing up the results of elections). Therefore, the complaints were resubmitted to the CEC on the following working day – 10.04.2017. On the following days as TECs decisions became available, 42 more appeals were submitted to the CEC. The appeals submitted to the CEC were examined in three sessions – on 2, 4 and 6 May. At 10.09.am on 2.05.2017 the appellants’ representatives were notified over the phone on the examination of the appeals against the decisions of 12 TECs at 18.00pm of that day. The representatives of observers (who are the representatives of all the complaints submitted to TECs on behalf of observers and observation organisations) motioned the CEC to postpone the session considering the unreasonable timing of the appointed session, the necessity to ensure the participation of observers, the number of the appellant observers, as well as the fact that many observers reside in various regions of Armenia. The motion was declined by the CEC in the course of the session held at 18.00pm on the ground that there is no factual circumstance which needs to be corroborated by this evidence.
In the course of the CEC session the representatives of observers made the following motions: 1) to examine the logs of PECs located in the territory of the relevant TECs; 2) to obtain and/or examine the copies of the footage made in the relevant PECs; 3) to invite the PEC members, the other participants of the electoral process in relevant PECs and registered in PEC logs as witnesses; 4) to enclose the evidence concerning the violations recorded by the observers in the polling stations located in the territories of the relevant TECs on the
TEC 12 - 14.04.2017 TEC 15 - 13.04.2017 TEC 16 - 18.04.2017 TEC 19 - 18.04.2017 TEC 24 - 13.04.2017 TEC 29 - 14.04.2017 TEC 33 - 14.04.2017 TEC 34 - 18.04.2017 TEC 35 - 14.04.2017 TEC 37 - 12.04.2017 TEC 38 - 15.05.2017 (this decision became available only on May 12, 2017, when the TEC 38 sent its decisions via ordinary mail in response to our written request).
63 electronic carrier with the case materials and to examine them.113 All of these motions were declined without any good reason. Moreover, all of the motions were declined at the start of the examination of the appeal against each TEC.
The examination of the appeals against TEC decisions by the CEC was of a purely formal nature. It could not be called an examination at all. During the sessions the CEC was merely reading out the drafts of decisions and adopting them unanimously. All of the statements and clarifications made by the representatives of observers during sessions were neglected. In exceptional cases the CEC invalidated certain parts of TEC decisions114 (the CEC decisions were adopted on 6 May concerning TEC no 8, on May 4 concerning TEC 22 and on May 6 concerning TEC 7). However, when they went back to TECs, the latter rejected them on identical grounds, while the CEC rejected the appeals submitted against them.
In one case the decision of the CEC adopted at the session had a different concluding part than that posted on its website later.115 In particular, it was decided during the session to invlidate the TEC decision adopted following the complaint of one of the observers. However, the examination of the posted decision revealed that the institution of the administrative proceedings on the basis of the appeal of that observer was denied. The overwhelming majority of the submitted appeals were rejected on the same grounds as those underlying the decisions of TECs. Certain clarifications were made by the CEC on the absence of facts of violations of the subjective rights of observers. In particular, the wording ‘the observation on the violation/ violations was not registered in the PEC log’ was conveniently interpreted by the CEC as proof of failure by the observer to put forward such a demand. That very same unlawful interpretation formed the basis of the CEC decisions on refusal to institute administrative proceedings.
In actual fact, the wording ‘the observation on the violation/violations was not
113 Evidence concerning the territorial electoral commissions was submitted on two CDs. 114 According to May 4, 2017 decision No. 208-A of the Central Electoral Commission, the decision of TEC 22 No 7-A was annulled. The decision of the TEC 7 No. 11-A, as well as the decision of TEC 8 No. 8-A, 9-A and 10-A were also annulled partially, according to May 6, 2017 decisions of the CEC No. 224-A, 218-A, 219-A and 220-A. According to the CEC, all these decisions were annulled as the respective TECs had violated Article 47 of the Electoral Code and would have examined the relevant parts of the case. 115 May 2, 2017 decision of the CEC No. 200-A.
64 registered in the PEC log’ means that in each and every case the observer demanded from the PEC chairperson that his/her observation be included in the log and this demand was not granted after it had been made. Otherwise, the fact of non-inclusion of the observation would not have been stressed, be regarded as a violation of the observer’s right and challenged. Moreover, in a number of cases PECs gave a diametrically opposite meaning to this phrase, assessing it as a fact proving that the observer had demanded inclusion of his/her observation into the PEC log and proof of violation of his/her right. In two cases that very same wording in complaints submitted to PECs resulted in TECs applying to the CEC with a motion to annul the accreditation certificates of PEC chairpersons (in polling stations 26/38 and 26/42). Moreover, the grounds for the decision no 26-A of TEC no 26 dated 07.04.2017 was exclusively that same wording and the actual absence of observations in PEC logs. Furthermore, that same wording in the complaints submitted to TEC no 7 stimulated the TEC to make inquiries to PEC chairpersons on the violation of observers’ rights. In addition to this, when this reason for dismissing a complaint was first read out in the CEC session on 2 May,116 the observers’ representatives made statements regarding the fact that in all cases when observers reported violations they also applied to PEC chairpersons for inclusion of their observations into PEC logs, which was not granted. These statements too were ignored by the CEC, which failed to mention these statements in any of its decisions. Moreover, the CEC applied double standards given the fact that in one case it interpreted the wording ‘the observation on the violation/violations was not included in the PEC log’ as a result of the exercise by an observer of his/her rights, while in another case when the observation of an observer was not included in the PEC log, the CEC ruled that such a demand had never been made by an observer.
The decisions adopted by the CEC on 2, 4 and 6 May were publicized in the CEC website on the second day of their adoption in a situation when the law prescribes a three-day period for appealing these decisions counted from the moment the decision is pronounced in the CEC session. Although this resulted in even more limited period of appeal, the CEC decisions were nevertheless appealed to the RA Administrative Court. The number of complaints submitted to the RA Administrative Court was thus 96.
116 Apart from TEC 9, in the course of session in which the observers’ representative gave clarifiations which, however, were not reflected in the adopted decisions.
65 3.1.10. ON THE CLAIMS SUBMITTED TO THE ADMINISTRATIVE COURT
The Citizen Observer Initiative filed 96 claims with the RA Administrative Court, 65 out of which were declared admissible by the court. 28 appeals were submitted to the Administrative Appeal Court concerning 28 cases, 13 out of which were granted. 5 of the appeals were brought against the decisions on the court fee to be paid. Three of the appeals were declared inadmissible. Cassation appeals were filed against them. Meanwhile the Administrative Appeal Court granted 20 of the COI appeals.
3.1.11. ON PROTECTION OF THE RIGHTS OF THE “JOURNALITS’ CLUB “ASPAREZ” ” AS A MEDIA OUTLET
The “Journalists’ Club “Asparez” ” had applied to the Central Electoral Commission for accreditation of 1000 (one thousand) representatives of two media outlets founded by “Asparez” (“Asparez” daily founded in 2011 and “asparez.am” news website founded in 2004) in order to be able to cover the parliamentary elections to be held on April 2, 2017. The CEC rejected the application of the “Journalists’ Club “Asparez”” on March 11, 2017 by its Decision No. 90-A. The decision of the CEC was based on paragraphs 1 and 2 of the Article 31’s Part 8 of the Electoral Code. The legal team of the Citizen Observer Initiative, considering that these restrictions do not comply with Articles 1, 2, 3, 5, 7, 42, 78, 80 and 81 of the RA Constitution, Article 10 of the European Convention on Human Rights, and do not reflect the principles of proportionality of restriction, legal certainty, inviolability of the essence of the fundamental rights, disputed the CEC decision before the RA Administrative Court (administrative case VD/2506/05/17). However, the Administrative Court rejected the claim on March 29, 2017. Having the aim to protect the right to freedom of expression envisaged by the RA Constitution and ECHR, applications were filed with the RA Constitutional Court and the European Court of Human Rights. By its Decision dated 26.12.2017 the Constitutional Court ruled on the application submitted on behalf of the ‘Journalists Club ‘Asparez’’ that the wording ‘only one mass media outlet and not more than 50 representatives of this media outlet’ in the second sentence of Sub-paragraph 2 of Paragraph 8 of Article 31 of the RA Electoral Code contradicted Articles 42, 52(2), 75, 78, 79, 80 and 81(2) and was is therefore invalid.
66 3.1.12. ON THE ACTIONS TAKEN BY THE BODIES IN CHARGE OF CRIMINAL PROSECUTION / THE LAW ENFORCEMENT
In response to the inquiry made by the NGO Europe in Law Association the RA General Prosecutor’s Office informed on 11.09.2017 that with a view to servicing the 02.04.2017 parliamentary elections the Task Force established within the RA Prosecutor’s Office checked the media publications and the reports received by the police stations throughout the country on 923 electoral violations.
Of these 923 reports 68 were merged with ‘materials prepared’ on the basis of the media publications and police reports about the same incidents and their fate was determined jointly. Of the remaining 855 reports the law enforcement bodies refused to institute proceedings in 835 cases. 7 complaints was taken against the decisions not to institute criminal proceedings, which were not granted by the supervising prosecutor. In 2 cases complaints were taken to the court.
In 20 cases criminal proceedings were instituted117, of which 1 was merged with another criminal case at the stage of investigation, in 6 cases the proceedings were discontinued. In 1 case the file was referred to the court with a motion to apply coercive measures of medical nature to the defendants, 12 criminal cases regarding 13 defendants were referred to the court along with the indictment.
3.1.13. ON THE APPLICATION SUBMITTED TO THE RA CONSTITUTIONAL COURT:
An application was submitted to the RA Constitutional Court on behalf of monitoring organisations, observers and a number of Armenian citizens on 14 April disputing the results of April 2, 2017 parliamentary elections. It stems from Articles 3 and 48 of the RA Constitution, and from Article 3 of Protocol 1 of the ECHR, as well as from the interpretation of Article 74 of
117 Articles 34-153 (attempt at voting more than once or instead of another person), 154 (violation of the secrecy of the vote), 149 (obstruction of the rights of media, observers) and 154.2(2) (giving a bribe to voters or interference with the exercise of the free will of the voter by candidates, parties, (party alliances), referendum campaign initiatives).
67 the RA Law “On Constitutional Court” that any person, who has the right to elect a legislative body must have an effective remedy for the protection of this right. The violations and irregularities registered during elections can directly influence the vote of every single voter (the exercise of every citizen’s electoral right in general). Therefore, the deprivation of the right to challenge the electoral results for everyone, including voters, observers and monitoring organisations will result in the elimination of an effective remedy in case of a violation of this right and, subsequently, violation of the right to free elections foreseen by Article 3 of the ECHR’s Protocol 1, as well as of Article 2 of the RA Constitution. Based on the above, the applicants insisted that persons having submitted the application, were eligible to apply to the Constitutional Court of the Republic of Armenia in order to challenge the results of the parliamentary elections, within the framework of the direct action of the provisions of Article 2 of the RA Constitution, Article 3 of Protocol 1 to the ECHR, as well as within the framework of the interpretation consistent with the provisions of Article 74 of the RA Law on the Constitutional Court, Articles 3 and 48 of the Constitution of the Republic of Armenia. According to the applicants, the only instance, where the exercise of the protection of this right can be ensured, is the Constitutional Court. However, the application was returned without examination. This was explained by the application having been filed by parties not having the legal standing to do so. An appeal was submitted against this decision to the President of the RA Constitutional Court, which was also rejected for similar reasons.
3.1.14. ON THE ELECTORAL DISPUTES INITIATED BY THE ORGANISATIONS PARTICIPATING IN ELECTIONS CONCERNING THE ELECTIONS AND THE ELECTORAL RESULTS
Within the framework of April 2, 2017 parliamentary elections, electoral disputes were initiated by the “Yelq,” “ORO” and “ANC-APP” blocks of parties. On March 23, 2017 the “Yelq” alliance of parties applied to the CEC asking to apply to the court with a motion to invalidate the registration of Arakel Movsisyan, an MP candidate from the RPA. The CEC adopted its decision No. 135-A on March 25, 2017, by which it rejected the motion on the pretext that according to the CEC, there was no justification or evidence proving that the violation committed by Arakel Movsisyan might have had an impact on the electoral results. On March 28, 2017 the “Yelq” alliance submitted a claim to the RA Administrative Court via ordinary mail demanding annulment of the decision of the CEC No. 135-A and invalidating of the registration of the candidate MP
68 A. Movsisyan. According to April 1, 2017 decision of the Administrative Court the proceedings of the case were terminated. On March 28, 2017 the “Yelq” alliance motioned the Central Electoral Commission to invalidate the registration of the list of the Republican Party. During the examination of the application the statements of the school principals118 (hereinafter: Statements) were examined. The CEC admitted that there had been two cases of influence on the teachers and parents of students (Khoznavar and Gyumri). On March 31, 2017 the CEC publicized its decision No. 146- A, by which it rejected the application of ‘Yelq’. On April 1, 2017 a complaint was filed by ‘Yelq’ with the Administrative Court with a request to annul the decision of the CEC No. 146-A and invalidate the registration of the Republican Party. On April 4, 2017 the “ORO” block of parties motioned the CEC, demanding that the fingerprints obtained during the electronic registration of voters in the polling stations be united in a single database and subjected to a comparative analysis with direct involvement of the OSCE and its specialists in order to determine whether there are any matching fingerprints. On April 8, 2017 the CEC publicized its decision No. 157-A, by which it rejected ORO’s motion. On April 11, 2017 a complaint was lodged with the Administrative Court against the decision No. 157-A, which was declared admissible on the same day (administrative case No. VD//3175/05/17). By its April 14, 2017 decision the Administrative Court rejected ORO’s complaint. The results of the elections were disputed only by the “ANC-APP” block of parties, which submitted relevant complaints to both the Central Electoral Commission and the Constitutional Court. The Constitutional Court pronounced its decision concerning the dispute over the electoral results on April 28, 2017 (SDO-1364).
118 The CEC acquired documents entitled “Statements,” which it attributed to the principals involved in the controversial recording. There is no evidence among the materials of the administrative proceedings proving that the identity of the authors of the statements has been verified. There is no document concerning the status of the authors of the statements, there is no explanation of who, where and when made a decision to take statements, how the authors of statements were notified about that, how they appeared among the materials of the case instituted on the basis of the application of ORO bloc of parties, why the same documents (originals) are the part of the materials of two different administrative proceedings and are in the folder of the 2nd administrative case.
69 3.1.15. APRIL 28, 2017 DECISION OF THE CONSTITUNIONAL COURT
Although the RA Constitutional Court upheld the decision No. 163-A of the Central Electoral Commission “On Summarizing the Results of the April 2, 2017 Parliamentary Elections,” it, however, issued a ruling that was important in the light of some of the aforementioned problems of electoral legislation. The RA Constitutional Court also stressed the concerns expressed by the applicant, as well as international and domestic observation missions. The RA Constitutional Court ruled that the primary objective of the Armenian authorities is to overcome the concerns expressed by international and domestic observation missions. The manifestations of political corruption in electoral processes were of particular concern in this regard. According to the Court, the elimination of political corruption has to become a priority issue from the point of view of state policy and the country’s agenda on strengthening legal security. The solution of the problem demands a complex approach, including through further improvement of the RA Electoral Code and the electoral processes, which will make it possible to overcome the legal risks of possible manifestation of political corruption in electoral processes. At the same time, the RA Constitutional Court found that the radical solution of the problem requires implementation of more active and consistent steps in order to overcome the coalescence of the economic, administrative and political potential, to bring the “employer-employee” relations to a new qualitative level corresponding to the principles of the rule of law, to make employees fully and legally protected persons in relations with their employers, to overcome the possibility of merger of political and business interests in all the stages of the electoral process. The RA Constitutional Court, in particular, referred to its decision No. SDO- 703 adopted on June 10, 2007, decisions No. SDO-736 adopted on March 8, 2008 and decision No. SDO-1077 adopted on March 14, 2013, according to which the provision of legislative and organisational guarantees for the supremacy of the political interests of the society is a priority issue for a rule of law State. This “... will exclude any possibility of immediate combination of political and business interests in the process of formation of representative bodies having a primary mandate.” The Court reaffirmed that the solution of this problem continues to be urgent for Armenia’s political system, also requiring a clearer legislative regulation.
70 The Constitutional Court further ruled that the concerns expressed by the applicant and observation missions concerning the cases of open voting, group voting, controlled voting, and presence of people not authorized to be present at polling stations, as well as the cases of pressure by public officials or private companies, merit a serious attention. The Court also found equally important the initiation of the process of electoral rights protection in the manner prescribed by law in all such cases, which will also create constitutional legal and necessary prerequisites for effective examination and evaluation of the electoral results in the Constitutional Court. The Constitutional Court further ruled that even if the cases submitted by the applicant were not considered credible, they still diminished public confidence in electoral and democratization processes consistently initiated in the country as a result of constitutional reforms. Therefore, no electoral offense should be neglected. The problem must be addressed with a view to its elimination, the inevitability of liability envisaged by law for the offenders and overcoming of the possible speculations concerning the mentioned. Based on the findings of the case, the Constitutional Court also stated that civil society institutions had been particularly consistent in the process of disclosure of the problems of electoral processes and the formation of public intolerance towards them. Only owing to them and the media it became possible to reveal certain gaps and problems still existing in the electoral process in the Republic of Armenia. The Constitutional Court also found that although the RA Electoral Code was adopted in a broad political consensus, actually receiving the votes of more than 3/4 of the total number of MPs, however, certain provisions of the Code do not fully implement the constitutional requirement of the principle of legal certainty and may cause serious arbitrariness. Particularly, it referred to insufficient clarity concerning the process of annulment of voting results in an electoral precinct; the fact of election of the National Assembly, clarification of the deadlines for the transfer of mandates to MPs and holding of the first session, which has become a subject of discretionary interpretation; exclusion of possible manifestations of political arbitrariness regarding the acquisition of mandates by MPs on the basis of party national and territorial candidate lists. There is also a need for further improvement of the system of the administrative proceedings and the process of examination of the complaints by territorial electoral commissions.
71 4. CONCLUSION
The formation, expression and due recording of the citizens’ free will, as well as the right to proper protection of the citizens’ electoral rights were not fulfilled properly during 2 April 2017 parliamentary elections in Armenia.
4.1. AMENDMENTS TO THE ELECTORAL LEGISLATION AND PRACTICE, THE EFFECTIVENESS THEREOF
Even a cursory examination of the problems of the electoral legislation and practice demonstrate lack of state policy and political will in the direction of fulfilment of the electoral rights as the cornerstone of a democratic society. Amendments to the electoral legislation, especially those that are considered essential are without practically any exception made during such a short period preceding the elections that the chances of adequate teaching and training of the amended electoral law and procedures to the institutions enforcing the law as well as to voters are considerably reduced, which results in serious practical problems. In the local reality where there is limited participation of non-ruling parties and civil society, the legislative amendments are made from the perspective of the state bodies and the ruling party only.
At the same time, when amendments that at first sight seem positive are made, their positive effect on the electoral process is neutralized by more latent amendments that are invisible to the broad public. Some amendments are obviously aimed at correcting the shortcomings of electoral commissions and further complication of the electoral complaints procedure in order to exclude the possible complaints and/or reduce significantly their numbers.
Despite the fact that the government advertised widely the new Electoral Code and the fact that certain amendments were made following the recommendations of opposition parties and civil society representatives, there are still serious problems in the new Electoral Code. Even though a number of NGOs, the professional community and the opposition powers continued voicing concerns about them and offering solutions, they were all ignored.
72 On the Electoral System. The introduction of the system of stable majority, the second round of parliamentary elections and the bonus system foreseen in the framework of this system rathen then contributing to the consolidation of democracy, limit considerably any political competition.
The introduction of territorial lists of nominees (the rating lists) distorted any attempt at building a truly proportional system, preventing any real competition between political programmes and parties and contributing greatly to unlimited use of the financial, administrative and other influences of the members of the ruling party.
Changes (elimination) of the limitations for politicians and certain public servants in taking part in the election campaign contributed to a wider and more effective abuse of the administrative resources predominantly in favour of the ruling Republican party.
On the Level of Maturity of the Political System and Political Parties. In conformity with the CEC Decision no 163-A dated 9 April 2017, 23 of the elected members of parliament - almost ¼-ը119- recused themselves from their seats. According to the media publications in the period preceding the CEC decision, 35 MPs recused themselves. According to another media publication, 12 MPs denied that they had recused themselves. This testifies to the fact that there had been pressure on them or that false statements had been submitted on their behalf or that the latter lacked any political responsibility and did not act as a political factor. At the same time, such a scale of this phenomenon demonstrates lack of effectiveness of democratic institutes inside certain political parties.
This concern was also reflected in the Decision of the RA Constitutional Court no CCD-1364 dated 28.04.2017 (see paragraph 13).
On the Limitations in the Area of Public Oversight. Due to limitations applied to the mass media, the NGO “Journaists’ Club ‘Asparez’”, which disseminates two media outlets – Asparez Daily (since 2011) and asparez.am (since 2004), was deprived of the opportunity to have its
119 http://res.elections.am/images/dec/17.201_A.pdf
73 1000 representatives accredited and to monitor the parliamentary elections through them (see section 3.1.11 of this report).
At the same time, the new powers of PECs in terms if restricting the rights of observers and media representatives in polling stations were problematic.
4.2. MERGER OF STATE FUNCTIONS AND PARTY INTERESTS/ USE OF THE ADMINISTRATIVE RESOURCES TO THE ADVANTAGE OF ONE PARTY
In view of the fact that the Republican Party of Armenia has at its disposal all state leverage, it used it in the interests of the party in connection with the elections to the National Assembly. The Republican party has concentrated almost all the executive power (starting from the President) and the legislature (simple majority).
The primary and most dangerous obstacle in the way to consolidating democracy in Armenia is the stable trend of establishing a one-party system. A necessary precondition and an indicator of this phenomenon is the merger of party and state functions, which was more explicit and obvious during these elections.
4.3. VIOLATIONS OF THE FORMATION AND EXPRESSION OF THE FREE WILL OF VOTERS OVERSIGHT OVER THE PARTICIPATION IN AND THE PROCESS OF VOTING It is well possible that the new public oversight mechanisms enshrined in the new Electoral Code, in particular the legislative requirement of making the signed voter lists publicly available contributed to the reduction of such gross violations as intimidation and violence on either the participants or the parties engaged in public oversight over the electoral processes (media representatives, observers, etc.), ballot box stuffing, etc. However, their actual impact, as well as their shortcomings and gaps are not fully detected due to lack of access to the VAD data and absence of a comprehensive examination of the electronic voter register and the signed voter lists.
Violations in the Period Preceding the E-Day / the Election Campaign /, Abuse of the Administratve Resources. /Section 2.4.1. /
74 In the period preceding the E-day, including the period of election campaign there were numerous reports of a wide-scale use of the administrative resources and vote buying.
There were registered incidents of involvement of state and community resources, including high-ranking and other public officials, as well as public sector employees such as school principals and headmasters of kindergartens in the election campaign predominantly in favour of the Republic Party.
Included among the high-ranking officials actively engaged in election campaign in favour of the RPA were Vigen Sargsyan, the RA Minister of Defence; Taron Margaryan, Mayor of Yerevan and Karen Karapetyan, the Prime Minister, while Armenia’s President Serzh Sargsyan engaged in election campaign in favour of the RPA in the armed forces of Armenia through official meetings.
The influence of the public officials employed in the bodies of public administration and local self-government in the period of election campaign was combined with the collection of the personal data of voters, including their passport data. They were then handed over to the bodies of regional administration and local self-government, the central headquarters of the RPA, as well as the headquarters of the candidates nominated by the RPA.
The demonstrates that a systematic and centralized mechanism was in operation with the involvement of the employees of the bodies of public administration and local self-government, and the influence of this resource was used to make lists of potential voters for and disposed by the RPA. This resulted in a factual influence and oversight over the participation of these voters in voting, as well as over the formation and expression of their will.
The Advantage and the Centralisation of the Financial Resources
Another noteworthy circumstance is that the financial resources of the election fund of the ruling Republican Pary exceeded for multiple times those of the other parties’.
According to the declared data, the election fund of the Republican Party was the biggest reaching 400 million AMD, while the total of the rest of the parties and party alliances together reached 481 million AMD.120
120 http://res.elections.am/images/audit/02.04.17m.pdf
75 Although this is not a violation by law nor an abuse of the administrative resources, it is a clear indicator that the fact that the RPA has been in power for many years has spurred processes, which resulted in incomparable advantages of this party over the rest in terms also of financial resources.
This is a clear sign of imperfection and ineffectiveness in the areas of political pluralism, access to resources, election financing and equal competition, as well as the system and mechanisms of state support to political parties or absence of any public policy on these issues.
Incidents of Vote Buying.
In conformity with various sources (the mass media publications, observations of the participants of election campaign rallies) in the period of election campaign there were widespread, continuous and systemic incidents of vote- buying as testified also by the amount of the agreed bribe – 10 000 AMD.
There were numerous reports on such incidents made by the parties running for elections, their candidates, proxies, observers and the media. However, no effective action was taken on these reports either by the bodies in charge of election administration or the bodies of public prosecution. Moreover, not only were they not condemned by high-ranking officials and the high-level politicians within the RPA, they were also encouraged and justified or some even made statements about inability of the state to fight against such crimes, as a result of which in an environment of impunity these cases became even more widespread taking more explicit forms in the period preceding the E-day and especially on the voting day.
The RA Constitutional Court touched upon these issues in its Decision no CCD-1364 dated 28.04.2017 by declaring the necessity to eliminate the incidents of political corruption in electoral processes as a priority on the agenda of the strengthening of the State’s legal security.
Influence on the Voter Turnour, Violations of the Secrecy of the Vote and Other Violations.
The violations of the right to free elections as enshrined in Articles 2 and 7 of the RA Constitution, were made in accordance with a well-planned, coordinated and continuous scheme of actions that like a chain started from the stage of formation of the voters’ will and ended with the act of voting of
76 each voter, of which the first part was the impact on the formation of the voters’ will (abuse of the administrative resources, vote-buying, threats and intimidation, including influence conditioned by labour relations between employers and employees), while the rest were the means to ensure the effectiveness thereof (transporting to polling stations with a view to voting; control over the voting in a polling station by means of directed voting and different other ways of violating the right to secrecy of the vote). As a final and effective component of this means – the final tier in the chain – direct control over the process of voting was exercised in voting rooms or a highly convincing illusion of such a control by means of the people “in charge”, including various observers was created. As a result of the aforementioned when there were no direct violations of the secrecy of the vote, the voters were convinced that the whole polling station was under the absolute and effective control and that their process of voting was also controlled.
In fact there was a unified and centralized system of influence and control over the formation and expression of the voters’ free will, including by means of the involvement of the bodies of public administration and local self-government. The aim of this arrangement was first to have an impact on the free formation of the voters’ will and then by means of violation of the constitutional guarantees exercise control over the expression of the voters’ free will. These incidents were of a widespread nature and were either ignored by electoral commissions or permitted by the latter. Another sign of influence on the participation and free will of the voters is the very high percentage of voting in mental hospitals, penitentiaries and by the military, as well as the outcome of their vote (section 2.4.8.).
No steps were taken to find out and assess the degree and scale of impact of these phenomena. The related information and reports were not duly examined or assessed by the bodies of election administration. Moreover, different public officials qualified these actions as not prohibited by law.
The impact of vote buying, pressure on the public sector employees and as conditioned by labour relations in the private sector on the elections and, as a consequence, the low level of public trust was obvious to the observers within the international OSCE/ODIHR mission (section 2.4.1. of the report).
The Constitutional Court also raised concerns about the need to exclude any impact on the will of voters by its Decision no CCD-1364 (paragraphs 11
77 and 13) dated 28.042017.121 It stated that there was a need for more active and consistent steps to overcome the merger of economic, administrative and political potential, as well as maintaining employer-employee relations in conformity with the principles of the rule of law in a democratic society.
4.4. ON THE INNOVATIONS INTRODUCED WITH THE ADOPTION OF THE NEW ELECTORAL CODE
On the Publication of the Signed Voter Lists.
The new regulation of the 20.10.2016 Electoral Code whereby the signed voter lists were to be scanned and posted on the CEC website after voting, was an important precondition in terms of preventing multiple voting and voting instead of others. However, in practice it became evident that it was a necessary but not sufficient precondition given the fact that when the signed voter lists are not searchable their analysis and use in terms of detection of violations is so resource-consuming that it essentially renders their timely and effective use impracticable.
Apart from this, criminal liability in cases of giving a false statement regarding voting instead of another or enclosing a statement with a false signature with the report when committed both intentionally and negligently was an explicit restriction on the possibility to make reports on this kind of electoral fraud neutralising essentially the positive impact of the publication of the signed voter lists from the perspective of their public oversight.
Problems Connected with the Voter Register and Voter Lists.
In the absence of any possibility for checking the electronic voter lists, the data of the actual voters and those entered into the VADs, the aim of raising public trust in the electoral process was not ensured (sections 2.4.3 and 2.4.4 of the report).
The COI observers recorded incidents of breakdown of the technical
121 http://www.concourt.am/armenian/decisions/common/2017/pdf/sdv-1364.pdf (SDO- 1364)
78 equipment, incompliances between the electronic voter lists and the signed voter lists. The number of incidents when the voter data were manually input into the VAD was very high – 229.757 (according to the official CEC data).
As a result of the study of the COI analytical group in the area of detection of the possible risks including the study of the signed voter lists there was also a very high number of repeated names. The comparison of the final voter lists published by the RA Police during the constitutional referendum of 6.12.2015 and the parliamentary elections of 2.04.2017 revealed incompliamce of about 106.000 addresses.
No audit was conducted of the voter ID cards and the passport database contrary to what was foreseen by the amendments to the Electoral Code dated 20.10.2016, which was of utmost importance in terms of raising public trust in the introduced VADs.
Another factor that had a significant impact on the level of public trust in electoral processes was the refusal to make a comparative analysis of the fingerprints of the voters by the CEC and the Administrative Court with a view to detecting the potential overlaps (section 3.1.14 of the report).
Cameras were installed in only 1500 polling stations. Moreover, it was decided not to do voice-recording or transmission of voice, which reduced considerably the effectiveness and evidential value of this tool. The access to the videomaterials was another problematic issue reducing the level of public trust in electoral processes. The videotransmission after the summary of the results of the vote was stopped and the footage was no longer available to the wider public. Neither was it sufficiently available to those parties that were entitled to access to it by law. Considering the international best practices (where there is video and audiorecording of the electoral processes) it is of utmost importance to ensure access to the videomaterials in the period following the elections from the perspective of further improvement of the electoral processes.
79 4.5. ON THE INSTITUTE OF COMPLAINTS
The Procedures.
There are serious obstacles and restrictions in the way to protecting the electoral rights, which makes any effective exercise, protection and restoring of the electoral rights even more complicated or impossible. The nature of these restrictions, as well as the absence of a legitimate aim for introducing them lead to the sole conclusion that their true goal was reducing the possibilities and number of complaints by means of complicating significantly the complaints procedures.
Due to arbitrary application of the law by the bodies of election administration there is no effective and useful means for protecting electoral rights.
Access to Court.
The procedures and timeframes for applying to court for the resolution of electoral disputes (access to court) were also restricted. A serious restriction to access to court is the arbitrary interpretation of the RA Law on Court Fees and calculation of such high levels of court fees that render the right to judicial protection in election-related cases simply illusory.
Although the deadlines for submitting complaints to TECs were extended somehow, the introduction of a number of other procedural regulations prevented their effectiveness in practice (section 3 of the report).
All of the above facts demonstrate that the competent electoral commissions either refused or avoided to examine election-related complaints within the prescribed timeframes. They also reveal the utter ineffectiveness of the system of complaints and lack of independence of electoral commissions. This is a clear sign of the fact that electoral commissions are not an effective instance for the protection of the electoral rights of the citizens, while the artificial delays in the adoption of decisions on the submitted complaints testify to the fact that the CEC was determined to prevent the receipt and examination of these complaints prior to the summary of the results of the vote and determination not to make it possible for citizens to enjoy the right to protection of their voting rights.
80 4.6. ON THE SYSTEM OF ELECTORAL COMMISSIONS IN CHARGE OF ELECTION ADMINISTRATION AND THE ROLE OF THE CEC
Facts of Lack of Autonomy and Independence of TECs, as well as Inadequate Qualifications Thereof.
The low level of qualifications of TEC members continues to be problematic.
In the period following the parliamentary elections of 2 April 2017, the COI registered incidents of interference by the CEC with TEC activities and lack of independence of TECs, as well as facts of adoption of TEC decisions from a single center (for example, the fact of appointment of the date and time of TEC sessions by the CEC as admitted by a number of the TEC members).
These problems result inevitably in a situation in which there is a clear lack of autonomy and independence in the three-tier system of electoral commissions. This system has one center of governance, while the rest of the commissions – TECs and PECs – act as performers and are totally deprived of any real powers for autonomous and independent decisions. This situation inevitably results in the elimination of the right to an effective remedy. In this situation appeals to higher commissions cannot be considered as an effective remedy either.
The low level of public trust in elections is conditioned by mistrust in electoral commissions, and lack of independence and impartiality thereof.
The ineffectiveness of electoral commissions in the area of prevention, detection and effective examination of electoral violations is also reflected in the decisions of the RA Constitutional Court.
4.7. THE OBSERVATION MISSIONS
The Domestic Observation Missions.
Many of the observation organisations accredited for the parliamentary elections of 2 April 2017 had not been previously known for any activity directed at human rights protection or promotion of democracy, which questions their goal of conducting election monitoring. Many observers from
81 these organisations were distinguished for their efforts in directing the voters and exercising control over the process of voting and enjoyed unequivocal acquiescence of electoral commissions. Therefore, the impartiality of observation missions and detection of the organisations and observers that pursue other objectives under the guise of an observer continues to be problematic.
Of the 49 observation organisations with their 28.021 observers it was only the organisations and observers that acted on behalf of the Citizen Observer Initiative and the Independent Observer Alliance that were most active and registered the most number of violations, contributed to their publicity and at the same time engaged in the protection of electoral rights (both subjective and objective), including by means of initiating legal processes. It was the violations observed and publicized by these observation missions that served as a basis for the election-related disputes initiated by the political parties that ran for elections. These facts were also reflected in the Decision of the RA Constitutional Court no CCD-1364 dated 28.04.2017122 (paragraphs 11 and 12), stressing inter alia the role of the Citizen Observer Initiative.
International Observation Missions.
It is also noteworthy that the CEC refused to send invitations to a number of international observation organisations, including the EPDE - European Platform for Democratic Elections and the ENEMO – European Network of Elections Monitoring Organisations, which is a direct indicator of the fact that the Armenian government restricts broader public oversight over elections, which reflects negatively upon the international reputation of the Republic of Armenia.
On the Organisational and Methodological Aspects of the COI Observation Mission.
Effectiveness The Citizen Observer Initiative is a platform created with a view to ensuring more effective monitoring of electoral processes and has as its goal ensuring broader and closer cooperation between observation organisations and the
122 http://www.concourt.am/armenian/decisions/common/2017/pdf/sdv-1364.pdf (CCD- 1364, para 12)
82 mass media. The COI enables also a deployment of a team of observers in each polling station, which increases considerably the effectiveness of the observation effort. Included among the goals of the COI is ensuring a broader, more experienced and professional community of observers, a more in depth and consistent analyisis and study of the problems of electoral legislation and practice, as well as formation of a broader informational platform.
Problems.
Included among the key problems are those of selection and training of a dedicated and qualified pool of observers at the time of large-scale observation efforts – the issue of human resources, which depends largely on timelimits.
The lack of financial resources is conditioned by the fact that in the period between elections no grants are awarded for election projects, which has a negative impact on continued improvement of the capacities of the observation missions.
The financial assistance is granted mainly in the form of international grants in the short period preceding elections, which limits considerably the possibility of selecting and training qualified and dedicated observers.
In Summary.
It should be noted that the amendments to the Electoral Code and the rest of the steps taken failed to support the fulfilment of the right to free elections as prescribed by Article 2 of the Constitution and the enhancement of the guarantees of this right, as well as the goal of increasing public trust.
The parliamentary elections of 2 April 2017 revealed even more profound issues, which are a serious challenge for guaranteeing the power of people though free and fair elections, as well as the protection of electoral rights via effective examination of election-related disputes.
No progress has been made in the area of the foreseen processes of complaints and their practice. Their ineffectiveness, on the other hand, renders it impossible to legally resolve election-related disputes and the protection of electoral rights.
83 The electoral legislation comprises regulations that contradict the RA Constitution and the European Convention on Human Rights and does not comply with the principle of legal certainty. At the same time, the electoral legislation has serious gaps in the area of guarantees of equal, free and secret voting rights. Of concern are also the shortcomings of the legislative guarantees of the effective protection of electoral rights.
The effective control of the ruling party over all the branches of power was more than explicit entailing a dangerous merger of the state and party functions, which conditions completely the ineffectiveness of elections and examination of electoral violations, as well as the outcome of electoral disputes.
84 5. RECOMMENDATIONS
In order to fully exercise the right to universal, equal, free, secret and direct vote as enshrined in the Constitution and to establish a representative democracy via elections and formation of the public power by the people of Armenia it is necessary to achieve fundamental and comprehensive resolution of the above key problems, which is possible only if all the relevant stakeholders, including civil society get involved in the process through broad public consultations and wide public consensus.
It is necessary to ensure in depth discussion of the priority problems reflected in the Decision of the Constitutional Court no CCD-1364 dated 28.04.2017 and develop mechanisms for their full solution.
5.1. ENSURING POLITICAL COMPETITION AND BETTER TRAINING FOR PARTY PROXIES
In order to fully ensure true proportional representation, it is necessary to ensure competition between political parties and programmes preventing any possibility for the merger of political and business interests.
It is necessary to develop effective legislative solutions for the prevention of the use (abuse) of the state/administrative resources balancing them with effective and measured means of liability.
Parties need to make greater efforts in deepening the knowledge and skills of their proxies on electoral legislation and processes and strive for due organisation of the oversight over electoral processes.
85 5.2. ON ELECTORAL COMMISSIONS AND ELECTION ADMINISTRATION
It is necessary to foresee such a system of solutions, which will ensure:
• A high level of transparency in the formation of electoral commissions at all levels and broader channels of involvement of independent people and experts in these commissions;
• Establishing an effective system of checks and balances in the three-tier system of electoral commissions, which will contribute to the real independence and autonomy of these commissions and prevent any interference with their activities;
• Ensuring such a system of commissions that will provide regular refreshment of their composition and exclude the negative aspects of their merger;
• Such a system of nomination and formation of the Central Electoral Commission that will ensure the possibility of nomination and election of the broadest possible circle of candidates with the involvement of civil society representatives;
• Broader and more comprehensive mechanisms of effective and real public oversight over the activities of both TECs and the CEC;
• Legislative guarantees for balancing the rights of all the stakeholders of electoral processes and exclude the involvement of the people with tarnished reputation for electoral violations in electoral commissions.
5.3. ACCURATE VOTER LISTS
Introduce an effective mechanism for checking compliance between the election register and the population register, which will be available to all the stakeholders of electoral processes. This will exclude any possibility for their exaggeration.
Differentiate between the lists of voters in Armenia and absent from Armenia
86 on the E-day (at least as of the moment of publicizing the verified voter lists in the period preceding the E-Day as defined by the Electoral Code).
Introduce a searchable system of signed voter lists, which will enable the conduct of the relevant checks within limited timeframes possible, the results of which will be used for summarisation of the results of elections.
Ensure availability of the data input into the VADs and a mechanism of oversight over these data that will be effective and available to all the parties involved in the electoral process.
5.4. BROADER RIGHTS FOR OBSERVERS
It is necessary to lift the regulations introduced in the Electoral Code for restricting the rights of observers and media representatives and exclude any possibility of discrimination.
The powers to invite international organisations must be given also to non- governmental organisations rather than state institutions only.
5.5. ENSURING EFFECTIVENESS OF COMPLAINTS PROCCESSES
In order to achieve any meaningful protection of electoral rights, effective examination of election-related disputes and fair assessment of any influences on the results of elections, it is necessary to take comprehensive and systemic measures at both legislative and practical levels. Therefore, it is necessary to:
▪ Analyse and review the problems of guaranteeing and ensuring the available and effective measures for the protection of electoral rights by the election administration bodies, and the courts, including the Constitutional Court;
▪ Review the legislative procedures and timeframes for submitting election-related complaints, the procedures and timeframes for examination thereof in order to offer the necessary guarantees for the effective examination of these complaints;
87 ▪ Confer the right to bring complaints on violations of objective electoral rights to voters and observation organisations;
▪ Foresee a broader circle of parties having a standing to bring election-related complaints, including by conferring on observation organisations the right to bring complaints on behalf of their observers;
▪ Review and extend the deadlines for final summarisation of the results of elections with a view to ensuring effective protection of citizens’ electoral rights;
▪ Taking account of the specificities and timeframes of electoral disputes, eliminate to the extent possible the formal requirements foreseen for complaints excluding any restrictions conditioned by them and guarantee the right to apply for legal remedies for broader circle of stakeholders;
▪ Ensure communication and circulation of documentation with electoral commissions through official electronic means of communications.
5.6. GENERAL MEASURES
All of the registered violations and problems have to be included within the list of priorities and analysed in the light of electoral legislation and practice. The detected systemic problems have to be eliminated. In particular:
▪ Citizens have to be more aware of the role and significance of election observation, participate in the formation of a demand for the formation of a free and fair electoral system, which complies with international standards and assume certain personal responsibility for engaging in public oversight of electoral processes;
▪ International organisations need to review their approach and base their assessments of various pieces of electoral legislation in objective arguments refraining from rush conclusions and standard political texts.
88