Part IV Summarized proposals Related to constitutional electoral reform 1. A new provision "political parties" should be added to Constitution, constitutional guarantees should be ensured for political parties' role and place in political system, their establishment and finance for their activity. 2. The existing electoral system to the National Assembly in Azerbaijan should be changed completely, the majority system should be absolutely rejected, proportional system should be introduced. During its implementation, staged transfer can also be taken into consideration. a. In this case, 125 constituencies should be abolished, a unique pond- constituency should be established, votes given to registered and legally - working parties should be collected, divided by deputy seats and a system defining seats for parties should be introduced. b. Taking into consideration the parliament's functioning, the seats in National Assembly can be increased to 200 persons. c. The party lists can also include independent candidates. 3. The previously existing norm of the Constitution should be re-introduced, the new form of the provision should ban one person's repeated candidacy excluding 2 term election irrelevant its consequency. 4. To encourage democratic habits in society, participation in elections should be determined not only as a right but also a duty. With exception of political parties’ boycot decisions, those refusing participation should be punished with administrative fine. General view at Election Code of the Republic of Azerbaijan 5. Generally, there are many objective reasons to revise the Election Code. Main factors necessitating it are establishment of public consensus and political confidence in the society, as well as among political sides, restoration of confidence in free and fair elections considered basis of democracy.
Terms in Election Code 6. To resolve the problem, the terms which existed when the Election Code was adopted should be reinstated. Particularly, the campaign period should not be less than 45 days. Formation of the election commissions 7.
Taking this into consideration, composition of all election commissions at all levels and positions in election commissions (chair, deputy chair, secretary) should be re-organized in a balanced way, on the basis of equal representation of all political parties (between the government and its supporter and the opposition being in front of government during all political processes or its union). Then the issue of quorum in adoption of decisions could be revised and be adopted by simple majority of vote. Voter registration 8. Taking into consideration the state's all opportunities, new amendments should be made to Election Code in connection with voter registration, CEC should automaticaly use citizens unique electronic registration register. This way, the inter-body difference can be eliminated and no voter name will be absent from the voter list. 9. To overcome the problem, relevant changes should be made to legislation, voting right for real military servicemen should be limited while on military service. Separately, prisoners should not be included into voter lists and their participation in elections should be temporarily limited. Shortly, establishment of temporary polling stations in closed institutions should be eliminated. 10. Voter turnout of 50%+1 should be obligatory in a referendum to be considered valid. 11. A requirement of 50% voter turnout should be set for presidential, parliamentary and municipal elections.
Nomination and registration process of candidates 12. To eliminate the above-mentioned problems, registration of candidates nominated by political parties and bloc of political parties in parliamentary and municipal elections, should be conducted on the basis of candidates list approved by political parties and bloc of political parties. The names of candidates on constituencies included in the decision should be submitted to CEC when elections start. ConECs should not demand an additional decision from political parties and party blocs. Separately, CEC should be able to directly use register information of political parties at Ministry of Justice, no registration document should be required from the sides. 13. Voter signatures supporting candidate at presidential candidates shold be collected without any quorum, voters should have right to give signature for more than one candidate. Registered political parties with organizations in at least 20% of ditsricts and their blocs should have right to put forth candidates. 14. The working group checking accuracy of candidate registration documents should be composed of independent experts, basis for refusing registration should be concrete and registration deposit should be applied for an alternative variant to registration. 15. Checking accuracy of voter signatures should be excluded from the Code for being absurd. 16. A voter supporting a candidate should simply submit ID number instead of signature, and it should be enough as a person's consent. Separately, opportunites for applying electronic signature should be expanded, platform for online support for a candidate should be created within www.e-gov.az system. Pre-election campaign Use of the right of freedom of assembly 17. Distribution and placement of election campaign materials should be absolutely free, technical regulations should not limit or eliminate fundamental voting right. Restricting norms in the Code should be eliminated. 18. For elections to be held free and democratic, for voters to feel themselves comfortable, the way to the right to free assmebly should be open. Whilst people assemble peacefully and do not endanger society,
imposition of high amount of fine on them, involving them in obligatory work and limiting their freedoms should be unacceptable. The sanction of this article should immediately be reduced to the level that existed in 2012. 19. The way of using administrative resources should be unambigiously closed during campaigning, candidates should be deprived of their legally recognized priviledges and opportunities irrelevant of their posts, equality of all candidates should be ensured. 20. From the start of elections, all reconstruction, construction works, refurbishment of facilities affecting citizen votes, should be banned. Except for cases of accidents, the period of expenditures pre-stipulated in state and local budgets, should be banned from the start day of elections to the day the results are declared. Campaigning in media 21. Provisions requiring registration of candidate in 60 constituencies and provision imposing other limitations should be eliminated; 22. All televisions and radios funded through state budget should allocate broadcast time in election process in an obligatory way; 23. This time should not be less than 1 hour a day for every television and radio and should be only at prime-time; 24. Paid broadcast time at private televisions, as well as public and state broadcasters should have minimum limit, campaign hours should be at prime-time, the highest level of the price should be set lower than the cheapest commercial ad within latest month; 25. The highest price set at periodical press outlets, online resources, sites and other media should be set less than the cheapest commercial ad; 26. From the start day of elections, "election period" regulations should be applied in all TVs and radios, periodicals, other media resources' news policy, both government and opposition should be given equal coverage in news; 27. Balance should be ensured, a press group with equal participation of sides should conduct controlling function; 28. Media bodies violating regulations should receive high fines and in case they do not follow the rules after fines, their broadcasting or publication should be temporarily ceased till the end of the voting day.
Registration and work of observers in elections 29. During voting day, observer should use his/her right to be in voting room of election station at any time of the day, use dictophone and video cameras, as well as other means of modern technology. The material observers obtain during observaton via those technical means should be considered as evidence obtained via legal way, relevant changes should be made to Civic Procedural Code and Criminal Procedural Code. Records of observation cameras should also be unconditionally considered legally obtained evidence for courts, these records should be critical at any dispute. 30. Legal force of the act compiled by observer should not be linked to other persons' will and should be evaluated as one of direct evidences. 31. All norms on conduct of exit poll should be excluded from the Code, any public body should freely conduct exit poll in any polling station and constituency. As it carries public control character over election process, getting CEC consent is of absurd nature. Status of compatibility of Central Election Commission’s acts of statutory nature with Electoral Code Completion of protocol of election commission 1. The abovementioned inconsistence in the “Comment” should be rectified, requirements of the Electoral Code and the recommendations of the international institutions should be fulfilled. Exit-poll 2. All the norms regarding conduct of “exit-poll” should be removed from the Electoral Code. “Exit-poll” should be conducted freely by any organization within the territory of any constituency or precinct. Since this is a kind of public control over the election process, it is not necessary to get permission from the CEC for that. Handling electoral complaints by the election commissions 3. Rules for submission and processing of electoral complaints should be simplified, processing of complaints should be accessible to everyone whose rights have been violated;
4. As international organizations have earlier recommended, composition of the expert groups should be reviewed and new Groups composed of independent lawyers capable to investigate the complaints fairly should be created. In order to provide the investigation to be handled by a group comprised of several experts, the related procedures should be amended. The applicants should be invited to the investigation process by the expert group for them to be able to submit their complaints as well as to participate in the groups’ discussion of evidences. The investigation process held by the expert group should be open for observers. 5. Extension of three-day requirement for investigation of complaint for another three days should be removed; 6. Even if three-day requirement to submit the complaint has passed, this period should be reinstated in the manner established for courts in case if the applicant has objective cause; 7. Criminal liability should be established for not investigating or avoidance of investigating as well as for not fulfilling the duties set forth by the legislation for investigating the complaints; 8. Except for the applicant’s fault or voluntary refusal, non-participation of the applicant in the investigation process should be the basis for cancellation of the decision regarding that particular case. 9. Sanctions for actions violating the election rights which are considered administrative offense or criminal case should be hardened. Moreover, unavoidability of liability should be ensured; 10. Election subjects’ opportunities to appeal to the court on irregularities regarding the election rights of administrative offense nature should be expanded, handling of these irregularities should be simplified and be prompt; 11. Norms for considering results of elections invalid should be more specified, and the requirement for approval of election results by the Constitutional Court should be cancelled. Election campaign 13. The media group equally formed of election subjects should have the function of controlling election campaign activities on media. 14. The applicants should be invited to the investigation process by the media group for them to be able to submit their complaints as well as to participate in the group’s discussion of evidences. The investigation process held by the media group should be open for observers.
15. Number of members of the media group, rules for its formation, as well as its functions should be clearly recorded in the act of the Commission. Web camera 16. Video records from the web cameras istalled for ensuring transparency, increasing public confidence in elections should be available to all election subjects, and use of such records as evidence while investigating the complaints should be precisely expressed in the Rules. Specified suggestions and recommendations in the decisions issued by the European Court of Human Rights and Committee of Ministries of the Council of Europe with regard to election cases related to Azerbaijan: 1. In order to achieve solution of the election cases by the courts pursuant to unique practice and in compliance with the stipulations of the European Convention of Human Rights, with adoption of the relevant decision by the Plenum of the Supreme Court of Azerbaijan Republic, in order to ensure the effective application of the Administrative Procedural Code of Azerbaijan Republic (which had entered into the force since 2011) in the administrative cases regarding election disputes according to the Article 131 of the Constitution of Azerbaijan Republic the explanation should be issued to the courts for the judicial experience; members of the election commissions should be provided with the relevant instructions informing them in the details of the election process; 2. Effective trainings should be arranged in order to motivate the judicial staff and members of the election commissions to apply electoral legislation and the European Convention on Human Rights, as well as ECtHR case-law in this regard; 3. Shortcomings in the procedure of verification of the election results by the Constitutional Court of Azerbaijan Republic should be eliminated in legislative way; in particular, relevant amendments to the electoral law should be made in order to ensure participation of
complainer and candidate, who was registered and according to initial results was elected and about whom is being complained, in the procedures carried out by Constitutional Court. 4. In the present context, in order to ensure objective solution of the election litigations, the appropriate reforms should be carried out in Judicial-Legal Council and the additional measures should be applied to reduce the role of the executive power in the issues of appointment of judges, elevation of them and their administrative responsibility and these issues should be transferred to the direct supervision of Judicial-Legal Counsel; 5. Moreover, in order to improve the judicial practice on the cases related to electoral disputes other opportunities suggested in CoE’s Action Plan on Azerbaijan for 2014-2016 years should be reviewed and cooperation with Venice Commission of the Council of Europe should be continued.