ARM-2012-2-002

a) Armenia / b) Constitutional Court / c)  / d) 31-05-2012 / e)  / f) On the debate concerned with the decision on the elections to the National Assembly under proportional electoral system / g) Tegekagir (Official Gazette) / h) CODICES (English).

Keywords of the Systematic Thesaurus:

4.9.1   

Institutions - Elections and instruments of direct democracy - Competent body for the organisation and control of voting.

5.2.1.4            

Fundamental Rights - Equality - Scope of application - Elections.

5.3.41.1          

Fundamental Rights - Civil and political rights - Electoral rights - Right to vote. (Right to vote )

Keywords of the alphabetical index:

Election, equal voting power / Election, voters  list / Election, equality of votes / Voting right, persons who are abroad.

Headnotes:

The Constitutional Court emphasised that protection of the right to vote, especially within the sphere of constitutional justice, does not presume a formal approach, i.e. how strongly the passive or active electoral rights have been violated. The issue has a wider scope and refers to the public function of elections, namely, how and on what basis the system of representative government is being formed, how the freedom of participation in governance is harmonised with the responsibility of forming of the representative bodies, and what kind of role private persons have in this process. The Court stated that it is the responsibility of the state to guarantee the possibility of holding democratic elections.

Summary:

The applicant challenged decision N-265-A of the Central Electoral Commission, adopted on 13 May 2012, concerning the election of deputies to the National Assembly under the proportional electoral system. The applicant contended that during the entire period of preparation for the election of deputies to the National Assembly of 6 May 2012, the election campaign and on the Election Day, the principle of equality of conduct of elections, recognised in Article  4 of the Constitution, was violated. The applicant pointed in particular to the fact that the President had participated in the electoral campaign combined with the performance of his presidential powers, and also to the participation of the Prime Minister and several other public officials in the electoral processes. The applicant also contended that the system of supervision of the electoral process and the system of voting in polling stations was ineffective, as well as the system for obtaining the invalidation of the election results. The applicant also argued that the number of the voters included in the electoral lists was indefinite, as well as the number of the voters who participated in the voting.

Concerning the right to equal voting power, the Court stated that it concerns the equal right to voting, to the accurate formation of constituencies and precincts, and to the equity of possibilities. Equity of possibilities is one of the most important elements of the right to equal voting power and includes, in particular, such conditions as coverage by mass media, airtime provided by television and radio channels, unconstrained campaigning, ensuring freedom of speech and expression, and transparency of campaign financing, among others. As stated in Point 19 of the Explanatory Report CDL-AD (2002) 23 of the European Commission for Democracy through Law («Venice Commission») Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report dated 30 October 2002: «The basic idea is that the main political forces should be able to voice their opinions in the main organs of the country’s media and that all the political forces should be allowed to hold meetings, including on public thoroughfares, distribute literature and exercise their right to post bills.» During the 6 May 2012 elections to the National Assembly, all observation missions provided a mainly positive assessment of the implementation of this requirement.

The Court stated that the neutrality of the state power during the electoral campaign is ensured by Article 22 of the Electoral Code, which places limitations on electoral campaigning by certain public officials who are also candidates. Article 107 of the Electoral Code has the same purpose. The Court also stated that the Electoral Code does not place any other limitation on the participation of various state officials, particularly the President, in electoral campaigns and that the Central Electoral Commission must be, and was, ruled by the requirements of law.

The Court stated that within the existing political system the issue should be solved not by way of forbidding persons holding certain political positions from participating in electoral campaigns, but by guaranteeing the strict implementation of Articles 18 and 22 of the Electoral Code.

As regards the applicant’s contention concerning the ineffectiveness of the jurisdictional control of voting results in polling stations or the results of the elections, the Court stated that «sanity» of the norms of law or the issue of compliance with the constitutional principles could not be considered as a debate concerned with the decision of the Central Electoral Commission.

The Constitutional Court found that the argument concerning the ineffectiveness of the system of supervision of the electoral lists of voters was without basis, as the applicant had not exercised his right to get acquainted with the lists signed by the voters. In addition, the Court noted that the applicant had not claimed violation of his right to get acquainted with the lists signed by the voters, which would have been appealed in the manner defined by law and which would have been of probative value.

The Constitutional Court also considered the argument of the applicant concerning the number of voters included in the electoral lists. The applicant contended that only those citizens resident in the Republic of Armenia should have been included in these lists. The Court stated that the present constitutional regulations do not stipulate the formation of such lists of voters which would exclude citizens of the Republic of Armenia, who enjoy the right to vote, are not excluded from registration and are absent from the state territory. At the same time, having regard to the fact that the vast majority of the citizens who are absent from Armenia for a long period are not excluded from registration from their permanent residence on the one hand, and on the other hand do not get consular registration in another country, the solution to the problem concerned with the lists should be sought either by way of amendments to the electoral system or by improving the manner of maintaining the state registry of the population. In both cases the Court held that the solution is beyond the scope of the Central Electoral Commission’s competence.

Having considered the probative value and content of both the applicants  and respondents  arguments, the Constitutional Court held that, given the problems of further development of the electoral system, the grounds, stipulated by law, under the disposal of the Central Electoral Commission concerning the results of elections to the National Assembly under the proportional electoral system, taken as a whole, served as an objective basis for decision N-265-A, adopted on 13 May 2012, and left the decision of the Central Electoral Commission unchanged.

Languages:

Armenian.