Helsinki Citizens’ Assembly-Vanadzor

The RA Ministry of Justice circulated a draft constitutional law “On making amendments and addenda to the RA Electoral Code”.

The draft law proposes a number of essential amendments and addenda to the acting Electoral Code. However, it does not address recommendations regarding legal subjectivity of observation organizations that have been issued by international organizations and bodies to the RA for years on end.

Thus, voters, mass media representatives and observers have the right to appeal decisions, activity or inactivity of the electoral commission only in case their subjective rights are violated. This means that above-mentioned persons do not have the right to appeal activities/inactivity or decisions of the electoral commission regarding general electoral violations made during elections. Similarly, legal subjectivity of observation organizations is not recognized by either electoral commissions or courts in terms of challenging general electoral violations. The practice of depriving voters, observers, observation organizations from the right to challenge decisions and activities of electoral commissions, as well as election results, contradicts international obligations of the RA and international standards of democratic elections. 

OSCE/ODIHR final report of elections observation mission regarding presidential elections of 18 February 2013 in the Republic of Armenia has a section of recommendations, one of which concerns amending the RA Electoral Code to give citizens, local observers and civil society groups the right to file applications against decisions and activities of electoral commissions, illegal campaigning, as well as election results.

Joint opinion of the Venice Commission and OSCE/ODIHR of 13.06.2016 on the RA Electoral Code has already recommended amending the Electoral Code to permit citizens, accredited citizen observers, and civil society groups to file complaints against decisions and activities of election commissions, unlawful conduct in campaigning, and election results; simplifying election-related complaints and appeals process; and allowing more time to prepare complaints and challenges to voting day violations and election results.

Joint opinion of the Venice Commission and OSCE/ODIHR of 17.10.2016 on the RA Electoral Code (CDL-AD(2016)031) specifies that a significant number of recommendations regarding complaints and appeals included in the Joint Opinion of 13.06.2016 have not been met, in particular, the opinion particularly stresses the recommendation on extending the scope of subjects who have the right to appeal. The same issue was recorded in the OSCE/ODIHR summary report on the National Assembly snap elections of 9 December 2018.  

Nonetheless, so far the RA electoral legislation has not recognized legal subjectivity of voters, observers and observation organizations in terms of challenging decisions and activities of electoral commissions, as well as election/voting results. Their legal subjectivity is also not recognized in legal practice either by electoral commissions or courts. Based on the above-mentioned, taking into account the RA obligations, it is necessary to establish a legal regulation in the draft to recognize legal subjectivity of observation organizations in cases of violations of rights stemming from observer status, as well as establish the right of observers and observation organizations to challenge violations of an objective electoral right.

It is necessary to make a subject of discussion the establishment of the right of voters, observers and observation organizations to submit challenges against voting/election results. This issue was also raised in the OSCE/ODIHR joint opinion of 9 October 2023 (CDL-AD(2023)030-ODIHR-481/2023, paragraphs 8 ,64, 73).

Article 30 of the draft proposes to add a second paragraph to Article 31 part 4 of the RA Electoral Code, “The Central Electoral Commission rejects observers’ application for accreditation also in case it turns out that the organization’s observer is a member to the electoral commission or participates in the elections in the status of a candidate, technical equipment maintenance specialist or a proxy”. At the same time, according to new part 4.1, the Central Electoral Commission recognizes  accreditation of an observation organization invalid in case conditions appear after accreditation, whose existence would have led to rejection of the accreditation application.

We find that this regulation is extremely problematic in terms of the disproportion of restricting implementation of observation mission. Above-mentioned cases should lead to removal of the relevant observer from the list of accredited observers and not depriving the observation organization from the right to conduct their mission altogether.

Helsinki Citizens’ Assembly-Vanadzor

Transparency International Anti-Corruption Center

Law Development and Protection Foundation