Doc. 9682

28 January 2003

Code of Good Practice in Electoral Matters

Report

Political Affairs Committee

Rapporteur: Mr Georges Clerfayt, Belgium, Liberal, Democratic and Reformers’ Group

Summary:

The holding of free, equal, universal, secret and direct elections at regular intervals is a sine qua non for recognising a political system as democratic. Noting that, until now, there is no permanent European body responsible for electoral monitoring and no formal text harmonising standards for the organisation and observation of elections, the Assembly welcomes the setting up of the Council for Democratic Elections, a tripartite body created within the Venice Commission, and the publication of the Code of Good Practice in Electoral Matters.

Convinced that, by becoming a reference document the Code of Good Practice would reinforce the impact and the credibility of election observation and monitoring activities conducted by the Council of Europe, the Assembly recommends to the Committee of Ministers to transform it into a European convention and expresses its wish that the Council for Democratic Elections should become a permanent body and implement its aims as set out in Resolution 1264.

I.       Draft Resolution

1.       The holding of free, equal, universal, secret and direct elections at regular intervals is a sine qua non for recognising a political system as democratic.

2.       Noting that, until now, every European or international organisation has tended to follow its own criteria on the observation and evaluation of elections and that there is no formal text setting out all the underlying principles of European electoral systems and no permanent European body responsible for electoral monitoring, the Assembly considers that the Council of Europe, owing to its specific role as the guardian of democracy in Europe, should play a pioneering role in codifying election rules.

3.       In view of the Council of Europe’s widely-recognised experience in observing elections and referendums in member states or applicant countries, Resolution 1264 (2001) therefore invited the European Commission on Democracy through Law (the Venice Commission) to set up a working group to devise a Code of Good Practice in Electoral Matters.

4.       The Assembly welcomes the setting up of the Council for Democratic Elections, a tripartite body in which the Assembly has actively participated together with the Congress of Local and Regional Authorities of Europe, and especially thanks the Venice Commission for its significant contribution to the drafting of the Code of Good Practice in Electoral Matters, which has now been published.

5.       The Assembly considers that the Code of Good Practice in Electoral Matters constitutes a major step towards harmonising standards for the organisation and observation of elections and in establishing procedures and conditions for the organisation of the electoral process.

6.       The Assembly notes with interest the documents recently drafted by the ODIHR (the OSCE Office for Democratic Institutions and Human Rights) and the ACEEEO (Association of Central and Eastern European Election Officials), which are also aimed at defining the rules governing democratic elections.

7.       The Assembly considers that the adoption of the Code of Good Practice in Electoral Matters would enable Council of Europe member states to re-evaluate and/or revise their electoral legislation. The election observation reports could check whether the laws and regulations applied in member states comply with the various criteria and rules laid down in the Code, with a view to assessing their democratic character.

8.       The Assembly considers that as a reference document not only for member states but also for the Assembly, the Code of Good Practice in Electoral Matters would reinforce the impact and the credibility of the electoral observation and monitoring activities conducted by the Council of Europe.

9.       The Assembly proposes to forward the Code of Good Practice in Electoral Matters to national delegations and parliaments so that it can be applied in Council of Europe member states as soon as possible and it supports any other similar initiatives.

10.       The Assembly therefore invites the Venice Commission:

i.       to set the activities of the Council for Democratic Elections on a permanent footing and consider the Council one of its own bodies while maintaining its current form of mixed membership, as specified in Resolution 1264;

ii.       to implement the aims of the Council for Democratic Elections, as set out in Resolution 1264, and, in particular, continue its activities with a view to:

      a. setting up a database comprising, inter alia, the electoral legislation of Council of Europe member states;

      b. formulating opinions, in co-ordination with the Assembly, on all general questions relating to electoral matters as well as opinions concerning possible improvements to legislation and practices in particular member states or applicant countries;

      c. drafting, as soon as possible, a computerized questionnaire, setting out in a practical form the general principles of the Code of Good Practice in Electoral Matters, which would give the observer delegations a better overview of the electoral situation.

II.       Draft Recommendation

1.       The Assembly notes that the Council of Europe has, over the last decade, developed numerous activities relating to the organisation and observation of elections and that it therefore has widely-acknowledged international expertise in this field.

2.       The Assembly refers to Resolution 1264 (2001) and Resolution ….. (2003) in which it calls on the Council of Europe to reaffirm its pioneering role in codifying election rules by inviting the European Commission for Democracy through Law (the Venice Commission) to set up a working group to devise a Code of Good Practice in Electoral Matters.

3.       The Assembly also recalls that, in its Recommendation 1578 (2002), it urges the Council of Europe to continue and step up its activities relating to the harmonisation of election rules to meet the new challenges facing Europe.

4.       The Code of Good Practice in Electoral Matters is of great importance as it sets out the underlying principles of European electoral systems and stipulates the conditions for their application.

5.       The Assembly considers that, as a reference document for member states, the Code of Good Practice in Electoral Matters would reinforce the credibility of the electoral observation and monitoring activities conducted by the Council of Europe.

6.       The Assembly takes note of the preliminary draft convention recently drawn up by the ACEEEO (Association of Central and Eastern European Election Officials), which proposes to create a legal basis for bringing electoral legislation and practice into line with international standards.

7.       The Assembly therefore recommends that the Committee of Ministers:

      i. transform the Code of Good Practice in Electoral Matters into a European convention, taking account, where appropriate, of the draft convention of the ACEEEO and the work of the OSCE/ ODIHR;

      ii. with a view to preparing a legal instrument, agree to set up a group of experts in which the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe and the Venice Commission would be represented as observers.

III.       Explanatory memorandum

I.       Introduction

1.       Noting that over the last decade the Council of Europe has observed many general, presidential and local elections as well as referendums in the member or applicant States, and that it has acknowledged expertise in this field on the international stage, the Parliamentary Assembly of the Council of Europe, in its Resolution 1264 Code of good practice in electoral matters1, invited the European Commission on Democracy through Law (the Venice Commission) to “set up a working group, comprising representatives of the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe (CLRAE) and possibly other organisations with experience in the matter, with the aim of discussing electoral issues on a regular basis”. The Venice Commission therefore set up the Council for Democratic Elections, which I have the honour of chairing. In its Resolution 1264 the Assembly also called upon the Venice Commission to “devise a code of good practice in electoral matters (…), on the understanding that this code should include rules on the run-up to the election, the elections themselves and on the period immediately following the vote” as well as to “compile a list of the underlying principles of European electoral systems by co-ordinating, standardising and developing current and planned surveys and activities. The text specifies that “in the medium term, the data collected on European elections should be entered into a database, and analysed and disseminated by a specialised unit”.

2.        The Venice Commission adopted the Code of good practice in electoral matters at its 51st and 52nd sessions (Venice, 5 and 6 July and 18 and 19 October 2002) and its President, Mr Antonio La Pergola, officially sent this document to the President of the Parliamentary Assembly, Mr Peter Schieder, on 6 November 2002. The Code of good practice in electoral matters is reproduced in Doc 9624.

II.       Origin of the Code of good practice in electoral matters

a)        Guidelines set out in Resolution 1264

3.       The proposal to set up a working group reflected the Assembly’s will to develop and make official the co-operation already existing between these different bodies. The more specific aim was to reinforce the complementarity of actions conducted in the field of election observations by both the Parliamentary Assembly (national elections) and the CLRAE (local and regional elections). In drawing up the Code of good practice in electoral matters the Assembly’s foremost objective was to define the underlying principles of European electoral systems and standardise the rules to be respected in observing or organising democratic elections. The planned data base was intended to facilitate, in organising or observing elections, the exchange of information based, inter alia, on the electoral laws of the Council of Europe member States.

b)        The role of European and international organisations in the field of electoral assistance

4.       Electoral assistance operations are currently organised by a number of European or international organisations. In addition to the field work carried out by the Parliamentary Assembly of the Council of Europe and the CLRAE, we might mention the activities of the European Union (European Commission and European Parliament), the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the ACEEEO (Association of Central and Eastern European Election Officials). The role played by these organisations in providing electoral assistance was described in a separate chapter in the report that provided the basis for Assembly Resolution 1264 (Doc. 9267). For further details please consult this document, since the analysis it sets out is still topical.

5.       Nevertheless, we should mention two recent initiatives launched by the ODIHR and the ACEEEO, which are also aimed at defining the rules governing democratic elections.

6.       The ODIHR has drawn up a preliminary paper entitled Practical guide to democratic elections - best practices, which suggests a review of the international standards in the field of democratic elections set out in the Copenhagen document. More specifically, this document comprises three sections dealing with the following aspects: the human rights foundations that facilitate democratic elections; the requisite ingredients of a democratic electoral system; and examples of good practices in electoral matters. The text was examined on 18 September 2002 at the OSCE Human Dimension Implementation Meeting (HDIM) attended by representatives of the Parliamentary Assembly of the Council of Europe and the Venice Commission.

7.       The ACEEEO2 was set up in 1991 at the initiative of the International Foundation for Electoral Systems (IFES). At its 11th annual conference in Moscow in September 2002 it tabled a draft convention on Election Standards, Electoral Rights and Freedoms in Europe, which sets out to codify the principles set out in a number of international treaties within an international document with legally binding force. This text endeavours to create a legal and administrative basis for adapting electoral legislation and practice to international standards, while defining the legal criteria to enable the international community to monitor elections. The President of the Central Election Commission of the Russian Federation, Mr Alexander Veshnyakov, gave this draft convention to President Schieder during his official visit to Russia (27 and 28 November 2002).

8.       This document, which comprises 27 articles, breaks down into four parts. The first part of the convention defines the standards to be respected in organising democratic elections, the second defines the status of the various persons involved in elections, the third stipulates the parameters governing the status and credentials of international observers, and the fourth describes those measures that should not be deemed discriminatory in national electoral legislations. The text draws a distinction between political and technical rules, and is intended primarily for the members of election commissions. It should be noted that the representatives of this association have stated their intention to submit this document to the Venice Commission for analysis.

c)        Registered deficit in European rules on electoral matters

9.       The main conclusions to be drawn from all this information is that every organisation tends to follow its own criteria on observation and evaluation, that the criteria and rules in electoral matters are still fragmentary and that there is no formal text incorporating all the basic rules on holding elections and no permanent European body responsible for electoral monitoring. The setting up of the Council for Democratic Elections and the formulation of the Code of good practice in electoral matters are major advances towards making good these omissions, while reaffirming the Council of Europe’s pioneering role in the electoral field.

III.       Presentation of the Code of good practice in electoral matters

a)        The Council for Democratic Elections

10.       In order to implement the guidelines set out in Resolution 1264, the Venice Commission has set up the Council for Democratic Elections, which comprises members of the Venice Commission and representatives of the Parliamentary Assembly of the Council of Europe and the Congress of Local and Regional Authorities of Europe. Observer status has been granted to the ODIHR, the Parliamentary Assembly of the OSCE, the European Parliament and the European Commission. The ACEEEO was granted observer status in October 2002.

11.       The Council for Democratic Elections has held three meetings, on 7 March 2002, 3 July 2002 and 16 October 2002. On these occasions the Council drew up guidelines for elections, accompanied by an explanatory report, both of which documents together form the Code of good practice in electoral matters. This Code was adopted by the Council for Democratic Elections at its second and third meetings, and then by the Venice Commission at its 51st and 52nd sessions (Venice, 5 and 6 July and 18 and 19 October 2002).

b)        The Code of good practice in electoral matters

12.       This Code draws on the guidelines set out in the report which formed the basis of the Assembly Resolution (Doc. 9267) and on the work of the Venice Commission in the electoral field3.

13.       The guidelines are the core of the Code of good practice in electoral matters.

14.       The explanatory report expands on the principles set out in the guidelines. It defines and clarifies them, adding selective recommendations on specific points. It also comprises two parts, one defining the underlying principles of European electoral systems and the other laying down the conditions for implementing these principles.

c)        The general principles of the Code of good practice in electoral matters

15.       The main aim of this Code of good practice in electoral matters is to standardise the rules governing the organisation and observations of elections. It goes into detail on the procedures and conditions for the organisation of the electoral process.

16.       The Code points out that in all Council of Europe member States the fundamental rights must be respected, the stability of the rules must be such as to exclude any suspicion of manipulation, and lastly, the procedural framework must facilitate the effective implementation of the rules in accordance with the underlying principles of European electoral systems. It warns States against a number of practices that are prohibited or strongly advised against and specifies the universal criteria which are considered as indispensable minimum standards or which preclude certain types of conduct, so that elections can be deemed free and democratic. For instance, as Article 3 of Protocol I to the European Convention on Human Rights stipulates, the holding of free and equal elections at reasonable intervals by secret ballot is a sine qua non for recognising a political system as democratic.

17.       This Code’s objective is to provide member States of the Council of Europe with guidelines in order to ensure that the constitutional principles of electoral law are respected by all, in accordance with comparable rules. It adopts a general approach leaving States some room for manoeuvre to cater for their individual traditions and specific situations, given that the arrangements for running elections partly depend on each country’s political and cultural traditions and positive law arrangements.

IV.       The impact of the Code of good practice in electoral matters

a)        Improved credibility for the Council of Europe’s electoral assessment and monitoring activities

18.       The endorsement by the Parliamentary Assembly of the Council of Europe of the Code of good practice in electoral matters would constitute a major advance towards standardising the rules on the organisation and observation of elections. This would, for example, prevent situations whereby the ad hoc delegations of the Parliamentary Assembly of the Council of Europe or the CLRAE drew up divergent assessments on the basis of their respective observations of elections in the same State. It might be useful to propose that member or applicant States draw on the Code in drafting or revising their electoral legislation, as appropriate. In this case the observer delegations could verify in situ whether the laws and regulations applied comply with the standards of the Code. Consequently, if the Code became a reference document that ensured consistent evaluation, it would reinforce the impact and credibility of the electoral observation and monitoring activities conducted by the Council of Europe.

b)        Creation of a database

19.       The last section of Resolution 1264 recommends creating a database to compile a list of the underlying principles of European electoral systems by standardising current surveys and activities. This database will initially comprise the electoral legislations of all Council of Europe member States. It must be stressed that links will be forged with the Venice Commission documents, reports drawn up by the Parliamentary Assembly of the Council of Europe and the CLRAE, the CODICES database and the ODIHR document base.

20.       By centralising all documentation on electoral legislation and the observation of elections, the Council for Democratic Elections could make a vital contribution to answering queries on the whole electoral field and to formulating opinions, in co-ordination with the Assembly, on possible improvements to legislation and practices used in any given member or applicant State.

c)        Drawing up an election evaluation questionnaire

21.       A computerised questionnaire is also to be devised, providing a practical summary of the general principles governing the Code of good practice in electoral matters, which would improve the observer delegations’ whole overview of the electoral situation. All this information would be stored in the database and be forwarded to the European Commission and the OSCE on request.

V.       Conclusion

22.       In view of the Council of Europe’s specific role as the guardian of democracy in Europe, Recommendation 1578 (2002)4 stipulates that the Organisation must now step up its activities in the field of codifying electoral rules in order to rise to the new challenges facing Europe today.

23.       The setting up of the Council for Democratic Elections, which is helping reinforce co-operation among the Parliamentary Assembly, the CLRAE and the Venice Commission, and the drawing up of the Code of good practice in electoral matters, should provide the Council of Europe with a solid foundation for concluding prospective agreements or practical arrangements, on an equal footing, with the European and international organisations involved in the field of electoral assistance and observation.

24. The Assembly must do its utmost to promote the potential political and ethical force of this text in the member States, by recommending to the Committee of Ministers that this Code of good practice in electoral matters should be transformed into a legally binding instrument. Similarly, in order that the text can be implemented in the member States of the Council of Europe as quickly as possible, the President of the Parliamentary Assembly of the Council of Europe could transmit shortly this Code of good practice in electoral matters to the national delegations and the national parliaments.

25. I personally consider that such transformation of the Code into a convention would constitute a decisive step in the field of codifying elections in Europe while at the same time reinforcing the Council of Europe’s reputation on the international stage. I remain convinced in fact that our Organisation must now contribute to the construction of a Greater Europe without dividing lines by developing its political role and its work in the fields of election observation and monitoring of the commitments entered into by its member States.

* * *

Reporting Committee : Political Affairs Committee

Reference to Committee: Bureau of the Assembly’s decision of 13.01.03

Draft Resolution and draft Recommendation unanimously adopted by the Committee on 15 January 2003

Members of the Committee : Jakic (Chairman), Rogozin (Vice-Chairman), Feric-Vac (Vice-Chairperson), Spindelegger (Vice-Chairman), Aguiar, Aliyev (alternate: Seyidov), Andican, Aristegui, Atkinson, Azzolini, Bakoyianni (alternate: Liapis), Behrendt, Berceanu, Bergqvist, Bianco, Björck, Blaauw, Blankenborg, Bühler, Cekuolis, Clerfayt, Curdova, Davern, Dreyfus-Schmidt, Durrieu,  Frey, Glesener, Gligoroski, Gönül, Goulet, Gross, Henry, Hornhues, Hovhannisyan, Hrebenciuc, Iwinski, Judd, Karpov, Kautto, Klich, Koçi, Kostenko, Lloyd (alternate: Tomlinson), Loutfi, Margelov, Martinez-Casan (alternate: Puche), Medeiros Ferreira, Mignon, Mutman, Naudi Mora, Neguta, Nemeth, Oliynyk, Ouzky, Paegle, Pangalos, Pourgourides, Prentice (alternate: Kilclooney), Prisacaru, de Puig, Ragnarsdottir, Ranieri (alternate: de Zulueta), Schloten (alternate: Lörcher), Severinsen, Tabajdi (alternate: Eörsi), Timmermans (alternate: Zwerver), Toshev, Turjacanin, Vakilov (alternate: Mollazade), Vella, Volpinari Voog, Weiss, Wielowieyski, Wohlwend, Wurm, Yarygina, Zacchera, Ziuganov (alternate: Slutsky), Zhvania

N.B. : The names of those members present at the meeting are printed in italics

Secretariat of the Committee : Mr Perin, Mr Chevtchenko, Mr Dossow, Ms Entzminger, Ms Alleon

1        Resolution 1264 (2001) Code of good practice in electoral matters. Text adopted by the Standing Committee, acting on behalf of the Assembly, on 8 November 2001 (see Doc. 9267, report by the Political Affairs Committee, Rapporteur Mr Clerfayt).

2        The ACEEEO is a non-profit-making, non-governmental organisation based in Budapest. Its main aim is to encourage information exchange and promote action to guarantee fair, open and democratic elections in central and eastern European countries. The ACEEEO is an NGO, which enjoys Observer Status with the Council of Europe.

3        Doc. CDL (2002) 7

4 “The Council of Europe and the new issues involved in building Europe”, Rapporteur Mr Prisăcaru (Doc. 9544).