considered in a public hearing, the case “On the dispute of the results of the National Assembly elections by majoritarian system in constituency # 63”.

The case was initiated by the candidate for deputy of the Republic of Armenia National Assembly; Samvel Balassanian’s petition filed with the Constitutional Court and contested the results of the Republic of Armenia National Assembly elections by majoritarian system in constituency # 63.

Having examined the petition of the candidate for deputy of the Republic of Armenia National Assembly Samvel Balassanian at June 11, 1999 session, the Constitutional Court of the Republic of Armenia made a procedural decision CCPR-16 to accept the case for hearing and, in conformity with Articles 31, 39, 40 and 57 of the Republic of Armenia Law “On the Constitutional Court”, to designate the Shirak Regional Electoral Commission whose decision on summarizing the National Assembly election results by majoritarian system in constituency # 63 was contested by the plaintiff, as respondent.

Having heard the report of the Constitutional Court Member H. Nazarian, the reporter of the case, having examined the explanations of the representatives of the plaintiff and the respondent, and the clarifications provided by the Shirak Regional Electoral Commission chairperson S. Avetissian, the secretary of the Commission J. Avetissian and the Commission member L. Khachatrian as well as by the deputy chairperson of the RA Central Electoral Commission V. Mkhitarian, and having investigated the petition and the existing documents of the case, the Constitutional Court of the Republic of Armenia

FINDS:

1. The National Assembly elections by majoritarian system in constituency # 63 in the Shirak region were held on May 30, 1999 in 14 electoral precincts established in compliance with the procedure laid down in Chapter 3 of the Republic of Armenia Electoral Code in the timeframe stipulated by Article 68 of the Constitution of the RA and Article 117 of the Electoral Code of the RA.

Following the procedure stipulated by Article 114 of the Electoral Code of the Republic of Armenia, in constituency 63 on the election day the following candidates to the National Assembly elections registered by the Shirak Regional Electoral Commission were included in the ballots of the National Assembly elections by majoritarian system: Gayaneh Ambardarian, Samvel Balassanian, Vardan Gasparian, Ararat Gomtsian, Ashot Khachatrian, Lavrenty Kakossian, Hamlet Hakobian, Armen Hovhannissian, Marzpetunie Margarian, Vachagan Meliksetian, Ferdinant Mnatsakanian, Seyran Poloyian and Gagik Vardanian.

According to the final protocol drawn up on June 1, 1999 by the Shirak Regional Electoral Commission on the election results by majoritarian system in constituency # 63, the total number of voters, according to voters lists was 29,082 and the total number of registered voters receiving ballots was, according to signatures, 14,446. The sum total of ballots cast for all candidates was 13,195.

According to the final protocol drawn up by the Regional Electoral Commission, the greatest number of ballots in constituency # 63 was cast for two candidates; Marzpetunie Margarian (4,426) and Samvel Balassanian (3,829).

2. The plaintiff’s contention is that while summarizing the election results of constituency # 63, the Regional Electoral Commission violated the requirements of Articles 116 and 62 of the Electoral Code of the Republic of Armenia and disregarded a number of violations that occurred at the pre-election phase and on election day.

In his petition, the plaintiff contends that violations committed during pre-election phase, on the elections day and while summing up the election results give grounds to declare the elections null and void. To support his claims, the plaintiff submitted to the Constitutional Court, as evidence, voters lists from several electoral precincts in constituency # 63, appeals and statements addressed to the Shirak Regional Electoral Commission and other documents.

3. In its explanation submitted to the Constitutional Court, the respondent notes that in constituency # 63 Marzpetunie Margarian was elected to the National Assembly since he received more votes than other contenders did. At the same time, the respondent also stated that the commission was unable to reach a final decision on the number of inaccuracies.

4. The Constitutional Court demanded and received from the Shirak Regional Electoral Commission copies of the decision of the Shirak Regional Electoral Commission about the outcome of the National Assembly elections by majoritarian system in constituency # 63 as well as of the final protocol of the Regional Electoral Commission, copies of the final protocols from all the electoral precincts in constituency # 63, copies of complaints lodged with the Regional Electoral Commission about the election results and the report on what action was taken in response to those complaints as well as copies of the protocols drawn up by all precinct electoral commissions on the number of inaccuracies.

At the same time, the Constitutional Court demanded that the local court of the Shirak region submit a report about the petition filed by the Shirak Regional Electoral Commission and about the circumstances of the return of that petition.

5. Having examined the documentation and the explanations of the representatives of the litigants, the Constitutional Court also ascertained the following:

a) the documents submitted by the plaintiff confirm and the report submitted by the Shirak Regional Electoral Commission admits about the inaccuracies in the voters lists in some electoral precincts of constituency # 63, in particular, hand-made corrections, notes, deletions, citizens left out of the voters lists and other violations of the requirements of Articles 9, 10, 11, 12 and 13 of the RA Electoral Code, that on June 1st and on June 3rd the plaintiff himself and through his proxies presented petitions to the Shirak Regional Electoral Commission demanding, on one occasion, that facts cited in the petitions be examined, and, on the other, that election results in some electoral precincts be declared partially null and void, whereas according to Article 14 of the RA Electoral Code, petitions about the inaccuracies of voters lists that are received not later than 5 days prior to elections, have to be examined by the head of the community in question and, should arguments arise, up to the day of elections, the decisions may be appealed against in the court whose decision shall be final.

b) As to the violations that the plaintiff alleged they occurred during the voting in several electoral precincts in constituency # 63, in particular, especially the cases of violating of the procedures stipulated by Articles 53, 55, 56, 57 and 58 of the RA Electoral Code, on June 1 and on June 3, 1999, i.e. with a partial violation of a two-day timeframe stipulated by Article 40 of the RA Electoral Code for appealing against the commissions’ decisions, actions and inaction, the plaintiff filed the petitions with the Shirak Regional Electoral Commission requesting the reported fact be examined.

c) Apropos the fact that about 450 ballots cast for the plaintiff in several electoral precincts of the constituency were annulled, on June 3, 1999 the plaintiff presented a petition to the Shirak Regional Electoral Commission requesting that legitimacy of the decision to annul those ballots be scrutinized, whereas according to Paragraph 1 of Article 40 of the RA Electoral Code, the deadline for appealing against decisions made by precinct electoral commissions on election results is 2:00 p.m. on the day following the elections. The respondent failed to provide convincing arguments about presenting the petition on due time and registering it with the electoral commission.

d) The facts of violations that, as the plaintiff alleged, had been committed during the pre-election phase, the election day and the summarizing of the results of the National Assembly elections by majoritarian system in constituency # 63 held on 30 May 1999, were examined by the Shirak Regional Electoral Commission on June 2 and June 3, 1999, and the respective protocols of those sessions were included in the material of the case. Failing, in the course of the examination, to reach a final decision on the plaintiff’s complaints, claiming that it was running short of time and circumventing the requirements of Article 40 of the RA Electoral Code the Regional Electoral Commission, took the case to the court of first instance of Shirak region on June 4, 1999. The latter made a report in writing to the Constitutional Court stating that the Shirak Regional Electoral Commission did not support the suit with any document and that on June 5, 1999 the Commission’s secretary J. Avetissian notified the court in writing about their request to recall the suit. The court honored that request. Thus, the Regional Electoral Commission did not implement its own June 3, 1999 decision and the requirement of the decision’s Paragraph 2, which prescribed taking the case to the court of first instance of Shirak region.

e) On June 8, 1999, i.e. in violation of the RA Electoral Code Article 40-stipulated procedure for appealing against the Regional Electoral Commissions’ decisions on summarizing the results of the National Assembly elections by majoritarian system, the plaintiff filed a petition with the RA Central Electoral Commission apropos the alleged violations in constituency # 63 requesting that the election results be annulled. The request was denied by the Central Electoral Commission since according to Paragraph 2 of Article 40 of the RA Electoral Code, the decisions made by Regional Electoral Commissions with regard to summarizing the results of the National Assembly elections by majoritarian system are not subject to review by the Central Electoral Commission.

Thus, having examined the submitted documents concerning the above-mentioned violations that, as the plaintiff alleged, occurred in constituency # 63 and the measures taken by the plaintiff and the Regional Electoral Commission to eliminate those violations, the Constitutional Court found that the plaintiff had not made the adequate use of the opportunities provided by the law for protecting his rights and legitimate interests in the course of the elections, whereas the respondent did not take adequate measures to identify and eliminate, in conformity with the requirements of the RA Electoral Code, the violations that occurred during the elections and thus failed to ensure the constituency voters to enjoy their voting rights. The Shirak Regional Electoral Commission operated with violations of the requirements of Paragraphs 7 and 20 of Article 42 of the RA Electoral Code as it carried out inadequately its authority over the entire election process in constituency # 63 during the National Assembly elections.

6. At the same time, having examined the additional arguments presented by the plaintiff seeking to have the contested decision made by the Shirak Regional Electoral Commission annulled and having examined the explanations of the respondent with regards to those arguments, the Constitutional Court also ascertained that:

a) while contesting the decision made by the Shirak Regional Electoral Commission related to the summarizing of the results of the National Assembly election results by majoritarian system in constituency # 63, the plaintiff also witnesses the June 1, 1999 final protocol of the Regional Electoral Commission as illegitimate because, he contends, the protocol was drawn up not by the 10 members of the Commission who signed it but by 1 or 2 members.

The respondent, objecting to the plaintiff’s additional arguments, noted that the final protocol had been drawn up and signed by ten members of the Shirak Regional Electoral Commission, i.e. by a majority, and was legitimate.

The examination conducted by the Constitutional Court revealed that indeed the June 1, 1999 final protocol # 4 of the Regional Electoral Commission had been signed by the majority of the Commission’s members. However, having examined the June 3, 1999 decision adopted by the Shirak Regional Electoral Commission apropos the summarizing of the results, the Constitutional Court believes that the decision has not been spelled out unambiguously and that one of its statements to the effect that “Collecting more votes than other contenders, Marzpetunie Margarian has been elected to the National Assembly from constituency # 63, since there are numerous complaints lodged and petitions presented in that constituency about the election results…” cannot give good grounds for the Central Electoral Commission to declare the candidate who collected more votes than other contenders as elected to the National Assembly and to issue a membership certificate for him to the National Assembly. More, the written explanation submitted by the respondent to the Constitutional Court clearly states that the Regional Electoral Commission, having examined various violations and being unable to determine the number of inaccuracies (and reporting the number of inaccuracies as “0” in the final protocol # 4), decided to take the case to the “law-enforcement agencies”, while notifying the Central Electoral Commission. Besides, written testimonies given by the Regional Electoral Commission members Hovhannes Petrossian and Lolya Khachatrian and submitted to the Constitutional Court furnish evidence that no decision about the election of the National Assembly deputy in constituency # 63 was made at the June 3, 1999 session of the Regional Electoral Commission. The same follows from the report # 1-37 submitted to the Constitutional Court by the respondent on June 12, 1999.

In contrast to the wording of the decisions on the elected deputies to the National Assembly from constituencies # 61, 62, 64, 65, 66 and 67 in the Shirak region, the results of the voting on the election of the National Assembly deputy from constituency # 63 have not been reflected in the protocol # 10 of the Regional Electoral Commission. In this connection the explanations provided by the respondent’s representatives S. Avetissian and J. Avetissian testify that indeed at its June 3, 1999 session the Regional Electoral Commission was unable to take a resolute stand on the results of the National Assembly elections by majoritarian system in constituency # 63 and, in the end, no decision was made. However, as the respondent’s representative S. Avetissian further explained, a written message was sent to the Central Electoral Commission about the election of Marzpetunie Margarian as the National Assembly deputy.

The deputy chairperson of the Central Electoral Commission (CEC) V. Mkhitarian explained that on June 3, 1999 the CEC had received the Shirak Regional Electoral Commission’s decision about the election of Marzpetunie Margarian as the National Assembly deputy.

However, it was discovered in the course of the hearing of the case in the Constitutional Court that such a decision had never been adopted by the Regional Electoral Commission. The chairperson and the secretary of the Commission stated that the document in question had been sent to the Central Electoral Commission under pressure without voting and adopting it by the Regional Electoral Commission.

b) The plaintiff also contends that the Shirak Regional Electoral Commission summed up the results of the National Assembly elections by majoritarian system in the region with the violation of the requirements of Article 62 of the RA Electoral Code since it did not determine the number of inaccuracies.

It follows from the protocols drawn up by the precinct electoral commissions in the constituency # 63 on the numbers of inaccuracies (Form # 8) and submitted to the Constitutional Court on the latter’s request that the number of inaccuracies in the constituency in question amounts to 1,665, including 8 in electoral precinct # 1182, 3 in electoral precinct # 1183, 2 – in electoral precinct # 1184, 2 – in electoral precinct # 1185, 4 – in electoral precinct # 1188, 10 – in electoral precinct # 1190, 2 – in electoral precinct # 1191 and 1,634 – in electoral precinct # 1195. However, the Shirak Regional Electoral Commission did not comply with the legally stipulated procedure for determining the number of inaccuracies and did not draw up a reliable final protocol.

Besides, the protocol of the electoral commission in precinct # 1195 on the number of inaccuracies was filled out with deletions and the respondent failed to produce reasonable explanation of why those happened.

The Constitutional Court also finds that according to the final protocol of the Shirak Regional Electoral Commission, the difference between the two candidates, Marzpetunie Margarian and Samvel Balassanian, who received more ballots than other contenders amounts to 597.

The Constitutional Court also acknowledges for the record that the Shirak Regional Electoral Commission failed to submit the final protocol of the electoral commission of precinct #1189 in constituency #63. In violation of the requirement of Paragraph 7 of Article 61 of the RA Electoral Code, the protocol was not given to the plaintiff either.

The hearing ascertained that the Shirak Regional Electoral Commission had not taken a firm stand for declaring the elections as null and void in compliance with Paragraph # 5 of Article 116 of the RA Electoral Code and had not selected one of the decisions, stipulated by Clause # 1 of Article 116, on the election results in the electoral district #63.

Proceeding from the results of the case hearing and adhering to Article 68 and to Paragraph 3 of Article 100 of the Constitution of the Republic of Armenia, to Paragraph 3 of Article 5 and to Articles 57, 67 and 68 of the Republic of Armenia Law “On the Constitutional Court”, the Constitutional Court of the Republic of Armenia

G. Harutiunian
President of the Constitutional Court