Elections in Azerbaijan 2005 

AD HOC COMMITTEE TO OBSERVE THE PARLIAMENTARY ELECTIONS IN AZERBAIJAN  

(6 November 2005)

Rapporteur: Mr Leo Platvoet (Netherlands / UEL)

I.          Introduction

1.         Following an invitation by the Minister of Foreign Affairs of Azerbaijan the Bureau of the Assembly decided on 20 June 2005, to set up an ad hoc Committee to observe the Parliamentary Elections in Azerbaijan to be held on 6 November 2005, and on 5 September appointed Mr Leo Platvoet as the Chairperson and rapporteur of this Ad Hoc Committee.

2.         On 4 October 2004 a co-operation agreement was signed between the Parliamentary Assembly and the European Commission for Democracy through Law (“Venice Commission”). In conformity with article 15 of the agreement – “When the Bureau of the Assembly decides to observe an election in a country in which electoral legislation was previously examined by the Venice Commission, one of the rapporteurs of the Venice Commission on this issue may be invited to join the Assembly's election observation mission as legal adviser” -, the Bureau of the Assembly invited an expert from the Venice Commission to join the ad hoc Committee as advisor.

3.         (composition of the ad hoc Committee)

4.         The ad hoc Committee acted as part of the International Election Observation Mission (IEOM) which also included the election observation missions of the parliamentary assemblies of the OSCE and NATO, the European Parliament and the election observation mission of the Organisation for Co-operation and Security in Europe’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR).

5.         The ad hoc Committee met in Baku from 4 to 7 November 2005 and held, inter alia, meetings with representatives of the main parties participating in these elections, the Chairman of the CEC, the Director of the Department of Legislation and Legal Expertise of the Office of the President of Azerbaijan, the Head of the election observation mission of the OSCE/ODIHR and his staff, representatives of the international community in Baku, as well as representatives of the civil society and mass media.

6.         On Election Day the ad hoc Committee was split into 25 teams which observed the elections in and around Baku, Jabrayil, Gubadli, Absheron, Sabail, Garadagh, Sumgait, Guba, Shamakhi, Shaki, Ganja, Kurdamir, Salyan, Lankaran and Nakhchivan.

7.         In order to draw up an assessment of the electoral campaign, as well as the political climate in the run-up to the elections, the Bureau sent a pre-electoral mission to Azerbaijan from 11 to 13 October 2005. The pre-electoral delegation, which was composed of one representative from each Political Group in the Assembly, consisted of Mr Leo Platvoet (Netherlands, UEL), Mr Andreas Gross (Switzerland, SOC),  Mr Andres Herkel (Estonia, EPP/CD), Ms Hanne Severinsen (Denmark, ALDE) and Mevlüt Çavuşoğlu (Turkey, EDG). In Baku the pre-electoral delegation met with, inter alia, representatives of political parties participating in these elections, the President of Azerbaijan, the Speaker of the Parliament, the Chairman of the CEC, the Minister of the Interior, the Chairman of the Constitutional Court, the Deputy Head of the OSCE/ODIHR Election Observation Mission, members of the international community in Azerbaijan, as well as representatives of the mass media and civil society.

8.         The IEOM unanimously concluded that the Parliamentary Elections in Azerbaijan on 6 November 2005, did not meet a number of Council of Europe and OSCE commitments and other international standards for democratic Elections, despite improvements in some respects during the pre-electoral period.

9.         The ad hoc Committee wishes to thank the Parliament of Azerbaijan, the OSCE/ODIHR election Observation Mission and the Special Representative of the Secretary General of the Council of Europe in Azerbaijan for their co-operation and support provided to the ad hoc Committee and its pre-election mission.

II.         Political and legal context

10.       The 2005 Parliamentary Elections in Azerbaijan took place against the backdrop of marked economic growth as a result of the increase in oil revenues and the opening of the Baku-Tbilisi-Ceyhan oil pipeline. However this has not yet been followed by a similar development for a democratic society in Azerbaijan. Previous elections have until now failed to meet Council of Europe commitments and standards for democratic elections. The 2005 Parliamentary Elections in Azerbaijan were therefore a crucial opportunity for the Azerbaijani authorities and political establishment to show that they have the will and ability to organise democratic elections that are in line with Council of Europe standards and commitments that Azerbaijan itself subscribed to when joining the Council of Europe. This was highlighted by Resolution 1456 (2005) on the Functioning of Democratic Institutions in Azerbaijan which was adopted by the Assembly on 22 June 2005 which stated : “It hopes that the forthcoming parliamentary elections will be held in a democratic and transparent manner, so as to cast no doubt over the credentials of the new delegation”.

11.       Azerbaijan is a Presidential republic, where broad executive power is invested in the President of the Republic. The unicameral Parliament of Azerbaijan, Milli Majlis, which does not exercise oversight of the activities of the government, consists of 125 members. These Parliamentary elections were the first elections organised after the 2002 Constitutional amendment that eliminated the proportional list element of the elections. As a result, all 125 members of Parliament are now elected in single mandate constituencies according to the “first past the post” system.

12.       The Parliamentary Elections in Azerbaijan are governed by the Constitution, the Election Code, the Law on Freedom of Assembly, the Law on Radio and TV broadcasting, as well as provisions in other laws. The Election Code has been amended several times, most recently on 28 June 2005. Regrettably, most recommendations made jointly by the Venice Commission and the OSCE/ODIHR were not, or only partially, addressed in these amendments.

13.       The amended Election Law has improved the provisions for transparency of the election process, the requirements for impartiality by all election commissions and the detailed rights and duties of officials and stakeholders in the election process.

14.       The ad hoc Committee regrets that recommendations by PACE and the Venice Commission for provisions that would have ensured a balanced composition of the election commissions at all levels were not adopted by the outgoing parliament. This remained a serious shortcoming in the Election Code. In addition, the Law on Freedom of Assembly gives local executive authorities considerable discretion to restrict and ban election rallies and other campaign events, in contradiction to the principle of freedom of assembly. Provisions in the Election code regarding appeals and complaint procedures proved to be ambiguous.

15.       The election law of Azerbaijan does not foresee the possibility of voting abroad. While recognising that a single mandate election system poses a considerable problem for the organisation of out of country voting, the fact a sizable part of the Azerbaijani population resides abroad meant that a part of the Azerbaijani electorate was de facto disfranchised during these elections.

16.       A significant number of voters in Azerbaijan, are internally displaced persons (IDPs) from Nagoro-Karabakh or adjacent territories not under control of the Azerbaijani government. These IDPs voted in 9 constituencies “in exile” with special polling stations located all over Azerbaijan. The registration of IDP voters and the organisation of their voting represented a considerable challenge for the election administration.

17.       On 11 May the President of Azerbaijan issued a decree “On the improvement of Election Practices”, restating the basic principles of conduct by all election officials and electoral stakeholders for the holding of democratic elections. These provisions, inter alia, specifically forbid the interference of officials in the election process in favour of one candidate or the other. Unfortunately, while widely welcomed by the international community, this decree seemed to be largely ignored at regional and local level in Azerbaijan. On 25 October 2005, the President issued a second decree acknowledging “mistakes and deficiencies in the sphere of elections”. It identified continued shortcomings in the election process, including problems with the distribution of voter’s cards – put in place as a mechanism to prevent double voting – and interference in the election process by local executive authorities. In this decree the President proposed, inter alia, to introduce the use of invisible ink to mark the voters’ fingers as a safeguard against multiple voting – a proposal of the pre-electoral delegation- , the lifting of the ban of NGOs that receive more than 30% of their funding from foreign sources from observing the elections, and improved guidelines on complaint procedures. In addition the decree called upon the local executive authorities to create equal conditions for freedom of assembly, and reiterated that administrative and criminal sanctions would be applied to those officials found guilty of irregularities during the elections and campaign period. While welcoming the tenet of the second Presidential decree, and the proposals contained therein, the ad hoc committee regrets that it was made at too late a stage to be fully effective in addressing the shortcomings noted during these elections.

18        The involvement of business interests in the elections was a point of concern, especially in the light of the absence of proper provisions regarding financial disclosure and transparency of campaign finances for candidates and parties competing in the elections.

III.        Election Administration

19.       The Parliamentary Elections were administered by a three-tiered election administration consisting of the Central Election Commission (CEC), 125 Constituency Elections Commissions (ConECs) and 5,053 Precinct Election Commissions (PECs).  Of these 9 ConECs and 487 PECs subordinated to them were reserved for IDP voters and located in areas where these IDPs moved to after the 1991 hostilities between Armenia and Azerbaijan.

20.       In accordance with the transitional provisions of the Election Code, the Chairperson of every election commission, including the CEC, was nominated by the ruling parliamentary majority, and pro-government parties enjoyed a decision-making majority in the commissions at all levels. The ad hoc Committee regrets that recommendations by the Parliamentary Assembly, as well as the Venice Commission and OSCE/ODIHR,  which would have provided for a more balanced election administration, were not implemented. The unbalanced composition of the election commissions seriously undermined the confidence of the public and electoral stakeholders in the unbiased functioning of the election administration.

21.       The CEC held regular meetings which were open to the public and met most of the legal deadlines for the technical preparations as stipulated in the Election Code. However, the processing of complaints and appeals, as well as the uniform implementation of the election code by lower level election commissions, proved to be problematic. After the Presidential Decree of 25 October, which called for improved guidelines for the complaints and appeals process, the Venice Commission provided an expert who assisted the CEC in the drafting of these guidelines, but again this decision was taken too late to be fully effective as a remedy against the shortcomings noted in this respect.

22.       The organisation of voting by the military was problematic. The Election Code stipulates that the military should vote in regular polling stations and that only in exceptional circumstances special military polling stations can be created. However, special military polling stations were created as a rule rather than as an exception. In addition the CEC delegated the organisation and conduct of the military voting to the Ministry of Defence which resulted overall in a non-transparent voting process of the military.

23.       The ad hoc Committee welcomed the extensive voter education effort that was conducted by the CEC, with the assistance of the international community, including the Council of Europe.

IV.        Candidate and Voter Registration

24.       The candidate registration process was largely trouble free, and originally led to the registration of more than 2,063 candidates out of 2,148 applicants for the 125 single mandate constituencies, creating the opportunity for real debate and genuine competition for the public vote on Election Day. This registration process was a marked improvement over previous elections and was welcomed by the ad hoc committee.

25.       Several candidates from the ruling YAP party originally registered themselves for the same mandate in a significant number of constituencies. Although a considerable number of them withdrew in favour of the officially supported YAP candidate before Election Day, their candidatures considerably widened the scope of the political debate in the pre-electoral period.

26.       A large number of candidates, 476 in total, withdrew their candidacy before the legal deadline of 26 October. In addition 41 candidates were deregistered by the Court of Appeal or had their candidatures cancelled by the CEC. Observers received numerous allegations that undue pressure was exerted on candidates to withdraw in many constituencies. Such undue, and illegal, pressure included threats of criminal prosecution, tax investigations and closures of businesses owned by candidates and their families. Moreover, many candidates deregistered by the Court of Appeals, often on allegations of bribing voters, alleged that the petitions against them were politically motivated, and that the last minute nature of these cases did not allow them sufficient time for a proper appeal before Election Day. The ad hoc Committee would like to stress that, if proven true, such cases of undue pressure are contrary to democratic principles and standards and are in violation of the right to stand for elections as enshrined in the Constitution of Azerbaijan.

27.       The accuracy of the voters’ list remained a point of concern during the pre-election period. The voters’ list was prepared by the local executive authorities and the deadline by which voters could request to be entered on the voters’ list, or update the information pertaining to them, expired on 1 October 2005. Few voters appeared to have taken this opportunity, but it should be noted that public scrutiny of the voters’ list was hindered by the absence of addresses on the published voters’ list.

28.       After the deadline expired by which the voters’ list could be changed by the election commissions, voters who wanted to be entered on the voters list, or update their information, needed a court order to do so. These court orders could be obtained until the end of Election Day. Judging from the number of persons that were added to the voters’ list on Election Day, the ad hoc Committee has the impression that this court procedure worked relatively efficiently in the large cities in Azerbaijan, although it seems doubtful that the same efficiency could be achieved in rural areas.

29.       Citizens residing outside Azerbaijan, but not registered with a diplomatic representation of Azerbaijan, remained on the voters’ list in accordance with the Election Code. This is an issue of some concern, given the apparent lack of accuracy of the voters’ list and the opportunity this could give for multiple voting on Election Day.

30.       The Election Code stipulates that a voters’ cards is given to each voter, as proof of inclusion in the voters’ list; and as a mechanism to avoid multiple voting. However, the distribution of the voters’ cards proved to be problematic and there was no proper audit of these cards, making their use as a mechanism to prevent multiple voting questionable and raising the possibility of disfranchisement of a part of the Azerbaijani electorate. The pre-electoral delegation therefore strongly recommended to the Azerbaijani authorities the use of putting ink on voters’ fingers as a way of preventing multiple voting. The Presidential Decree of 25 October, citing problems with the distribution of the voters’ cards, instructed the CEC to introduce the marking of voters’ fingers with invisible ink during these elections.  Moreover the CEC agreed to abolish, for these elections, the requirement for voters to present a voters’ card in order to vote.

V.         Pre-election period

31.       The political climate remains charged and contentious in Azerbaijan. Attempts by the international community in Azerbaijan to set up a dialogue between the government and opposition parties failed when the parties could not agree on a venue for their meeting. Moreover, the widely-held belief that the opposition parties were planning to stage a campaign of protest and civil obedience after Election Day in order to achieve a change of power in a similar manner to as what happened in Tbilisi and Kyiv - although unlikely given the weak and fragmented nature of the opposition - led to a considerable hardening of the relationship between government and opposition parties, and an increasingly polarised campaign environment.

32.       The restriction on freedom of assembly, an unalienable human right in a democracy, was an issue of great concern during these elections. The government had, in contradiction to this principle, greatly limited the number of venues, especially in Baku, where political rallies could be held. Unauthorised rallies organised by the opposition were met with a disproportionate reaction by the authorities. The disproportionate violence and brutality, bordering on outright cruelty, displayed by the police when breaking up unauthorised rallies was strongly condemned by the pre-electoral delegation. At the same time, the pre-electoral delegation called on the opposition parties to focus on the electoral debate and to refrain from seeking violent confrontations with the authorities.

33.       The campaign was marred by the interference of local executive authorities in the election process and the abuse of administrative resources by local officials in favour of one candidate or the other. Moreover, many candidates and campaign activists were harassed in the course of their campaign activities, and numerous cases of detention of opposition candidates, and their campaign staff, were observed during the pre-electoral period. A number of reports were received by observers of intimidation and coercion of school staff and persons working in institutions dependent on state funding, to vote for selected candidates. The ad hoc Committee would like to stress that such practices have no place in a democratic society.

34.       In the regions opposition rallies were taking place under close surveillance of the police, and in a number of cases, authorised rallies were obstructed or dispersed, further undermining the principle of freedom of assembly during these elections.

35.       The Presidential Decrees of 11 May and 25 October acknowledged many of the shortcomings observed in the pre-electoral period and provided instructions to local executive bodies to ensure that these elections would take place in compliance with the Election Code and accepted standards for democratic elections. However, lack of implementation undermined these stated objectives.

36.       The opposition parties in general focussed their campaign rhetoric on allegations that the governing party was going to rig the elections instead of focussing on political issues, creating an atmosphere of resentment and mistrust. The initial refusal of the authorities to introduce the inking of voters’ fingers - a recommendation of the international community taken up by the opposition - added to their arguments and undermined public confidence in the fairness of the election process.

VI.        Media

37.       Television is the main source of information in Azerbaijan. The printed media have little coverage outside urban areas and most newspapers have a limited circulation.

38.       The election law stipulates that political parties, and blocs with candidates registered in more than 60 constituencies, are entitled to free broadcast time and print space, under equal conditions, in the state funded media. The state funded media did adhere to these legal requirements, offering the candidates the opportunity, albeit not always equal, to make their views heard among the electorate. The organisation of regular debates has been a welcome development in this respect.

39.       Overly restrictive interpretation of the media regulations by the CEC, including the requirement that candidates pay for airtime as paid advertisements when they are interviewed on news programmes, limited the possibility of candidates, especially those not belonging to a political bloc or party, to disseminate their views among the electorate.

40.       The State-funded broadcaster AzTV showed clear bias in its news and current affairs programmes in favour of the ruling party and largely ignored opposition activities, thus failing to meet its legal obligation to create equal access for all election candidates. Public TV (ITV) showed a similar pattern of favouritism but provided more information regarding the opposition’s activities than AzTV. The private channels Lider TV, Space TV and AT were similarly biased in favour of the ruling party.

41.       The privately owned ANS Channel was the only one to provide a more balanced coverage of the election campaign, although its coverage is less than that of the other nationwide channels. ANS reported administrative difficulties regarding its licence during the campaign, which was a point of concern for the ad hoc Committee 

42.       The printed media provided a plurality of views, but were often biased in their reporting in favour of one party or the other.

VII.       Election day - Vote count and tabulation

43.       On Election Day, in general the voting took place in a calm manner with the voting positively assessed by international observers in 83% of the polling stations visited. Irregularities and serious violations were, regrettably, also observed including ballot stuffing, attempts to influence voters and local executive officials interfering in the voting process.

44.       Despite the late introduction of the inking of voters’ fingers, all polling stations had received the necessary material in time and the inking procedure was generally applied satisfactorily in the majority of polling stations. In addition, the inking procedure was in general well accepted as a necessary procedure by the Azerbaijani voters. International observers noted that in 13 % of the polling stations the inking procedure, and especially the checking of ink on voters’ fingers, was not or not consistently applied. While this may be related to the fact that the inking procedure was introduced after the polling station commission members were trained, it diminished in those cases the effectiveness of the inking procedure as a mechanism against multiple voting.

45.       In a considerable number of places multiple polling stations were located in the same physical space, which frequently resulted in overcrowding and limited the transparency of the vote for observers, party representatives and polling commission members. In addition, polling stations were often inadequate for disabled or elderly voters.

46        The conduct of the election process deteriorated significantly during the vote count and tabulation. International observers assessed that in 43% of the cases the proceedings during the vote count was bad, or very bad, to the extent that it undermined the confidence in the accuracy of the results announced. Tampering with the final protocols was observed in 15% of the polling stations observed, while final protocols were completed with pencil in another 15% of the cases. Moreover, observers and party representatives were intimidated in 17% of the polling stations and unauthorised persons were directing the counting process in 14% of the vote counts observed. In addition the tabulation at constituency level was assessed as bad or very bad in 31% of the ConECs visited.

VIII.      Conclusions and recommendations

47.       The Parliamentary Elections in Azerbaijan on 6 November 2005 did not meet a number of Council of Europe commitments and standards for democratic Elections. While there were improvements in some respects during the pre-election period, shortcomings were evident with regard to key aspects of the process such as voter registration, and continued restrictions on freedom of assembly, a fundamental right, marred the campaign period. Voting was generally calm, but the Election Day process deteriorated progressively during the counting and, in particular, the tabulation of the votes. High level state authorities expressed the political will to improve the overall election process, as reflected in two presidential decrees. However, incoherent implementation by executive authorities, most notably with regard to provisions prohibiting interference by the authorities in the election campaign, or the abuse of administrative resources in favour of certain candidates, undermined the effectiveness of these decrees.

48.       The extent of the irregularities and violations during the tabulation and counting process were such that it undermined faith in the accuracy of the preliminary results, and consequently public confidence in the fairness of the election process.

49.       The credibility of these elections now depends on the complaints and appeals process and the manner in which the authorities and the CEC will investigate and address the irregularities and violations reported. The ad hoc Committee therefore calls upon the Azerbaijani authorities to fully investigate all irregularities reported to it and respond to complaints and appeals that are lodged with it within the deadlines as set out in the Election Code. Administrative and criminal proceedings should be started, as foreseen in the Election Code, where violations are found. The results should be annulled, and reruns ordered, in those constituencies where irregularities are found to have affected the outcome of these elections. Your rapporteur sees the first reactions of the Azerbaijani authorities, who annulled the results in a number of constituencies and started criminal proceedings against various persons suspected of committing offences against the election Code, as a hopeful sign, but insists that this should not be limited to a few isolated cases. In this respect it is important to reiterate the expectations of the Assembly regarding the fairness of these elections as stated in Resolution 1456 (2005) adopted on 22 June 2005

50.       The incoming Parliament should, without delay, adopt the remainder of the recommendations made with regard to the Election Code by the Parliamentary Assembly and the joint Venice Commission/ODIHR opinion, especially where it concerns the composition of the election commissions.

51.       Taking into account the overall positive assessment of the inking procedure, and its wide acceptance by the Azerbaijani electorate, the inking of voters’ fingers should be introduced in the Electoral Code as part of the voting procedure, at least until the system of voting cards has been properly implemented and proven effective during a future national election.

52.       Freedom of assembly is an unalienable human right and an essential component of a democratic society.  The infringements on the principle of freedom of assembly as witnessed during the pre-electoral period are unacceptable in this respect. The Law on Freedom of Assembly should be amended so that local executive authorities can no longer place any undue restrictions on the holding of peaceful rallies.

53        The ad hoc Committee calls on the Azerbaijani authorities to work with the Council of Europe on the drafting of a Code of Ethics for the police forces in order to avoid a repetition of the disproportionate reaction, and brutality, of the police forces when maintaining public order, as witnessed during the pre-electoral period.

54.       The ongoing antagonism and polarisation between opposition and governing parties is hindering the democratic development of Azerbaijan. The ad hoc Committee calls on both opposition and ruling parties to respect the trust and responsibility placed invested in them by the Azerbaijani electorate and to co-operate with the international community in their attempts to facilitate dialogue between them.

55.       The ad hoc Committee would suggest to the Bureau to consider a post election mission to Azerbaijan in early 2006 to discuss the findings of the ad hoc Committee, as well as the action undertaken by the Azerbaijani authorities to address the shortcomings noted.