Legal analysis of implementation of OSCE ODIHR recommendations on 2016 parliamentary elections
Civil campaign "Human Rights Defenders for Free Elections"
I. Legal analysis of Decree No. 18 of 8 June 2016 “On clarifying the application of the provisions of the Electoral Code of Belarus regulating the procedure of formation of election commissions during the elections of deputies of the House of Representatives of the National Assembly of the Republic of Belarus of the sixth convocation”
Taken as a whole, Decree No. 18 of 8 June 2016 preserved the principle of nomination of representatives to election commissions: they can be delegated by political parties, public associations, meetings of labor collectives, and a group of citizens of at least 10 people. At the same time, parties and nation-wide public associations can only send their representatives to district election commissions formed on the territory of the region and the city of Minsk, if the party or the NGO has a registered branch within the territory.
Decree No. 18 fixed a rule that would allow to unify approaches to solving the problem of observers’ right (representatives of public associations involved in election observation) to attend the meetings of local executive committees convened to form election commissions. These meetings can be attended by international observers accredited by the Central Commission, representatives of political parties, other national associations, whose observers are accredited by the Central Committee (one representative from each political party or public association). In order to attend the meeting, a person must present an official letter of delegation signed by the NGO’s head.
Earlier, observers repeatedly criticized the practice of creating election commissions without discussion of each candidate, voting for a list of candidates, absence of clear criteria for the selection of applicants and lack of guarantees for the involvement of political actors in the commissions.
The document aims to solve these problems by the following measures: before making a decision on the formation of the election commission the meeting should consider the issue of business and political qualities of nominated persons, and if the number of candidates exceeds the necessary amount, hears each candidacy should be discussed and put on a separate vote. These definitions give rise to new questions that need to be addressed and clarified: what kind of business and, especially, political qualities can be an advantage during the formation of a commission? What is the exact procedure of voting for securing unbiased results? The latter question was addressed in an interview with the head of the Central Election Commission Lidziya Yarmoshyna, who said that the procedure would be based on rank voting. However, this explanation was not included in the text of the CEC decision.
Thus, we can still witness a situation that is likely to result in representatives of political parties not being properly represented in election commissions, as there are still no guarantees of their participation in the activities of the commissions.
The only, but clearly insufficient step in this direction was the introduction in 2013 of a rule, according to which the representatives of the parties that nominate their candidates for the elections have the right to send to the territorial commissions (a total of seven commissions) their representatives in an advisory capacity.
II. Legal analysis of Decree No. 20 of 8 June 2016 “On approval of the procedure of delegating observers in the preparation and conduct of the elections of deputies of the House of Representatives of the National Assembly of the Republic of Belarus of the sixth convocation”
The Decree regulates the procedure of delegating and receiving accreditation for observers during the parliamentary elections.
The basic principle of sending observers, as set forth in paragraph 2 of the Decree, is that political parties, public associations, labor collectives and their structural units, and groups of voters have the right to send only one representative (or more than one with the consent of the election commission) to a meeting of the election commission or the polling station.
It should be noted that the Decree provides for the possibility of sending observers by national public associations and political parties to the election commissions of all levels, including at the polling stations, located in the territory of the Republic of Belarus, irrespective of the availability of local branches in the corresponding territory.
This order reflects a positive approach to observers, primarily representing opposition parties, because in most cases they do not have officially registered local offices, as well as public associations that lack local branches in accordance with their Charters. Earlier, the CEC often banned sending observers by unities other than local branches of political parties and public associations. Under the rule, a public association, which had no local offices, could only send observers to the meetings of the CEC.
Paragraph 17 of the Decree provides for a new procedure for the termination of the powers of observers at the polling station. In particular, in accordance with this paragraph, the term of powers of an observer at the precinct election commission and at the polling station starts from the moment of his or her accreditation by the commission and expires after the tabulation of results at the polling station and at the district, regional and Minsk city election commissions, i.e. on the day of the announcement of voting results in the district, region, and the city of Minsk, respectively. At the same time, in accordance with Part 6, Article 13 of the Electoral Code (the version of 2013), the powers of the observer start from the moment of his or her accreditation and expire on the day of the announcement of voting results by the corresponding commission.
In practice, this wording may be treated in such a way that an observer at the polling station will be denied the opportunity to appeal vote count results and the final protocols of election commissions in connection with the expiration of his or her powers.
Special attention should be paid to paragraph 15 of the Decree, which specified the rights of observers, finding that during early voting and on Election Day observers have the right to receive information about the number of voters included in the voter lists and the number of voters who took part in the vote.
In addition, it specifies the rights of observers registered in the district election commissions to observe the reception of protocols from precinct election commissions.
It is worth noting that earlier representatives of the campaign "Human Rights Defenders for Free Elections" criticized bans on allowing observers registered in the territorial commissions to observe the transfer of protocols from precinct election commissions. These bans referred to claims by commission members saying that observers, in accordance with Art. 13 of the Electoral Code, have the right to attend only the meetings of election commissions, while receiving protocol with voting results, according to the CEC, is not a meeting of the election commission. Thus, the observers were deprived of the opportunity to observe the process of establishing election results on the territory or each district. They were only invited to the meetings of territorial or district commissions that approved election results, which took place a few days later.
Position of the campaign’s experts is that Art. 13 of the Code only contains a suggested list of the rights of observers, while the exhaustive list of prohibited activities does not contain prohibitions on receiving information regarding the number of registered voters and the number of votes, as well as a ban on observing the work of regional election commissions during the transfer of protocols from precinct election commissions.
We welcome a more detailed interpretation of the rules of Art. 13 of the Code provided in the Decree, but we do not believe that in this way the CEC moved beyond the Electoral Code.
At the same time, the CEC secretary Mikalai Lazavik noted that the CEC “had a lot of comments from international observers, who wanted to see the protocols being received by the district commissions. We have taken into account their wishes, although it expands the scope of the law.”
In this case, it is surprising that the CEC uses a selective approach to the possibility of "expanding the scope of the law",
as in the case with the proposals of the campaign "Human Rights Defenders for Free Elections" on the regulation of the vote counting procedures the CEC’s position was that these procedures could not be settled by the CEC regulations, since they were contrary to the provisions of the Electoral Code. At the same time, the Code does not contain a description of vote counting by the polling station election commissions. In addition, in accordance with para. 3 of Part 1, Art. 33 of the Code, the Central Election Commission can only clarify electoral legislation for its uniform application.
We also believe that the OSCE ODIHR recommendation regarding observers' rights was not taken into account to the full extent, since observers are still prohibited to receive a copy of the protocol with voting results and to have access to voter lists.
The campaign "Human Rights Defenders for Free Elections" is a non-partisan initiative and does not intend to support political parties and politicians. The entire election process is assessed solely on the basis of the principles of free, democratic and transparent elections, which can enable the people of Belarus to fully exercise their constitutional right to participate in the government of the country.
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