on the report of OSCE/ODIHR Needs Assessment Mission regarding 1st November 2015 parliamentary elections in Azerbaijan
Having carefully studied the issues raised by the OSCE Needs Assessment Mission Report (NAM), we have concluded that they address seven subjects of major importance for both Azerbaijan and its partners: GENDER EQUALITY, ELECTORAL COMMISSIONS, APPEALS PROCEDURES, CANDIDATE REGISTRATION PROCESS, FREEDOM OF ASSEMBLY, DEFAMATION LAWS and MEDIA ACCESS.
In order to better evaluate the validity of the criticisms expressed by the OSCE we have undertaken a comparative analysis of the legislative provisions for the electoral process developed by Azerbaijan, Germany, The Netherlands and Norway, for all the major issues with the exception of gender equality, which we address from a separate, more internationally orientated perspective.
The analysis also includes opinions and recommendations of the European Parliament, PACE, OSCE PA, OSCE/ODIHR election observation missions, as well as Venice Commission regarding the elections in the Azerbaijan Republic and the state of their implementation.
“Women are underrepresented in public office, holding some 16 per cent of seats in the outgoing parliament …” [A. POLITICAL BACKGROUND]
“There are no provisions to promote balanced gender representation in election commissions, and 4 out of the 18 CEC members are women.”[C. ELECTION ADMINISTRATION]
The issue of underrepresentation of women in decision making positions is one of great consequential importance, not only for Azerbaijan, but also for many established democracies.
The Republic of Azerbaijan is assessing methods through which it can improve the current situation and we feel that the issue needs to be analyzed in a wider, international context, many developed nations finding themselves in the same or worse position.
The percentage of women in national parliaments in the period between 2010 and 2014 is similar or inferior to that of Azerbaijan in most cases, with international and European examples such as[i]: the Czech Republic (20%), Estonia (19%), Hungary (10%), Ireland (16%), Japan (8%), Malta (14%), Romania (14%), United Kingdom (23%), and the United States (19%).
Further, in our region, the Republic of Azerbaijan with 16% of elected members of parliament being women has achieved the best results, with Armenia currently standing at 11%, Georgia 12%, Iran 3%, the Russian Federation 14% and Turkey 14%.
In regard to special provisions for the inclusion of women in the Central Electoral Commission, we have analyzed similar electoral legislative provisions[ii] from several Western European nations, including Norway, The Netherlands and Germany, as well as the most recent OSCE NAM reports regarding the electoral process in these nations.
Based on this analysis we have found that none of the reviewed electoral laws contain special provisions for the representation of women in their nations’ respective electoral commissions and, while other legislative provisions for gender equality may be applicable by extension, none of the electoral laws contain specific regulations for a minimum quota of women members of the electoral commissions.
Finally, none of the most recent OSCE NAM reports[iii] have mentioned the lack of said provisions in the electoral laws for these nations, a fact that implicitly leads to the conclusion that addressing the gender equality issue within the narrow scope of the electoral laws’ rules concerning the composition of the electoral commission in the case of Azerbaijan is unjustified.
“However, legal issues that have been the subject of longstanding OSCE/ODIHR recommendations remain unaddressed, including the formula for composition of the election commissions, candidate registration procedures….”[B. LEGAL FRAMEWORK AND ELECTORAL SYSTEM]
“Several OSCE/ODIHR NAM interlocutors from political parties and civil society reiterated longstanding concerns that this formula, in practice, gives pro-government forces control of all commissions, undermining trust in the impartiality of the election administration. “ “The OSCE/ODIHR has previously recommended that the composition of election commissions should be revised with the aim of enhancing impartiality and public confidence in their work.”[C. ELECTION ADMINISTRATION]
“The Election Code provides for the creation of expert groups within the CEC and ConECs to handle complaints and report to the respective commission on individual cases. The CEC determines the rules for composing expert groups. Several OSCE/ODIHR NAM interlocutors expressed concern that, in practice, these groups usually do not include independent experts but rather reflect the partisan interests of commission members. The OSCE/ODIHR has previously recommended that the composition of expert groups and procedures for their work be reviewed so as to ensure impartiality and effective remedy.”[H. COMPLAINTS AND APPEALS]
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK
Elections are organized and held by the “election commissions” which are empowered to prepare and hold the suffrages, determine the voting results and observe and protect the citizens’ suffrage rights. The election commissions do not depend on state institutions, political parties or any other legal entities and physical persons in regard to the preparation and holding of the elections. The decisions of the election commissions are binding on state bodies and municipalities, candidates, political parties, public organizations, campaign groups, officials and voters.
Within the electoral system of Azerbaijan, the superior election commission is the Central Election Commission of the Republic of Azerbaijan.[iv] At a lower lever there are the Constituency Election Commissions and the Precinct Election Commissions organized for each constituency and precinct respectively.
The Central Election Commission is elected by the Milli Majlis (Parliament) and consists of 18 members. Six are nominated by the majority (governing) parliamentary parties, six are nominated and represent the minority (opposition) parliamentary parties and six are nominated by independent (non-affiliated) deputies in the Milli Majlis.
The independent deputies nominate lawyers that are not affiliated with state (government) structures. Per article 24 paragraph 4 of the Azerbaijan Electoral Code, all the members of the Central Election Commission must be graduates of a higher education institution (in general university graduates).[v]
The Constituency Election Commissions consist of nine members, three representing the ruling parliamentary party (parties), three the parliamentary opposition party (parties) and the other three representing the non-partisan (independent) deputies of the Milli Majlis.[vi] At the polling station level, the Precinct Election Commission comprises six members, two nominated to represent the ruling party (parties), two nominated to represent the parliamentary opposition party (parties) and two representing the independent deputies.
The candidates for membership in the Precinct Election Commission can be put forward by the relevant political parties, their local branches, or by voters. In addition, no more than two of the members of the Precinct Election Commission may be in municipal service[vii] in order to ensure the overall impartiality of the commission.
According to the German Federal Election Act, the principal bodies charged with the proper supervision and organization of the elections are the Federal Returning Officer and the Federal Electoral Committee, the Land Returning Officer and the Land Electoral Committee, for each Land, the Constituency Returning Officer and the Constituency Electoral Committee for each constituency, and the Electoral Officer and the Electoral Board for each polling district. A Joint Constituency Returning Officer may be appointed and a Joint Electoral Committee formed for several neighboring constituencies. Electoral Officers and Electoral Boards may be appointed for several municipalities or specific districts instead of every constituency for the purposes of establishing the results of the postal ballot.[viii]
The Federal Returning Officer is appointed by the German Federal Ministry of the Interior, while the returning officers at the lower levels are appointed by the respective Land (state) Government. The Federal Electoral Committee is composed of the Federal Returning Officer who acts as chairman of the Committee, as well as eight other qualified voters appointed by him or her and two judges of the Federal Administrative Court.
The other electoral committees are composed of the respective Returning Officer (acting as Chairman) and six qualified voters appointed by the Chairman. At the Land (state) level, two judges from the Land’s Administrative Court are also appointed as members of the Land Electoral Committee.
The Electoral Boards (polling district level) are composed of the Electoral Officer (Chairman) and three to seven qualified voters appointed by the Electoral Officer.
The Land (government) has the discretion to order the members of the Electoral Board to be appointed by the local municipal authority, under the constraints of taking account of the political structure of the local elected assembly, whenever possible.[ix] Per provisions of Section 11 of the Federal Election Act, any citizen eligible to vote is legally bound to serve as a member of the committees if nominated.
For the electoral process for the Dutch Parliament, an Electoral Council is established and charged with advising the government and all relevant authorities on technical matters as well as serving as the Central Electoral Committee, in cases clearly stipulated by the law.[x] The Electoral Council acts as the Central Electoral Committee for elections to the House of Representatives.[xi]
The main institutions responsible with the supervision of the electoral process at a local and regional level – for the electoral process for the lower house of Parliament – are the (principal) electoral committee of each district and the municipal electoral committees. The electoral committees are charged with organizing the electoral process and supervising it, including being responsible for determining the vote results and accepting the submissions of candidates lists.
In regard to the electoral process for the lower house of Parliament, the House of Representatives, a principal electoral committee is established in each electoral district, consisting of five members, including the mayor of the municipality where the committee is based (the primary municipality of the district) acting as the chairperson, with the remaining members being directly appointed (and dismissed) by the Minister of Interior. At the municipal level, the local executive is charged with the establishment of one or more electoral committees in its area of responsibility, with the specific composition and member count being left at the discretion of the local authority.[xii]
The authorities charged with overseeing the electoral process in Norway are the electoral bodies, the Electoral Committee at a municipal level, the Polling Committee, in situations involving elections taking place in several areas of the municipality, the County Electoral Committee at the county level and the National Electoral Committee[xiii].
The Electoral Committee and the Polling Committee are elected by the municipal council (local authority), with the municipal authorities being able to delegate the appointment of the members of the polling committees to the local Electoral Committee. The County Electoral Committee is appointed by the county council (regional authority), while the National Electoral Committee, which is formed specifically for parliamentary elections, is appointed by the King of Norway and consists of no less than five members.[xiv]
At a national level the primary institution charged with overseeing the electoral process as well as validating the results in the French Republic is the Constitutional Council.[xv]
At a local level, voting bureaus (bureau de vote) are organized, with a centralizing bureau being designated from the existing ones in larger municipalities.[xvi] The French law stipulates that a voting operations control commission is created, charged with overseeing the voting commissions (bureaus). The control commissions are mandatorily presided by a magistrate of the judiciary. The composition of the control commissions are determined by decree of the politically independent State Council[xvii] but must comprise a magistrate and another member designated by the same authority that nominates the magistrate, the president of the Appeal Court, as well as a functionary nominated by the prefect, the representative of the government[xviii].
The Constitutional Council comprises nine members, each holding office for nine years. Three of the members are appointed by the President of France, three by the President of the National Assembly (lower house of parliament) and three by the President of the Senate of the French Republic.[xix]
The polling station voting bureaus are composed from the president and at least two assessors and a bureau secretary.[xx] The voting bureaus are presided by a chosen delegate nominated by the mayor of the municipality from among the eligible voters.[xxi] The assessors are nominated by the candidates or the political groups participating in the elections, with each candidate or group having the right to nominate a representative, and, in special circumstances, supplementary assessors can be designated by the mayor from the municipal councilors or the eligible voters.[xxii]
The method of nomination implemented by Azerbaijan ensures a legally balanced system where both the ruling parties as well as the opposition and independent political actors are represented in the electoral institutions.
Germany implements a mixed system that incorporates judges (forming a minority) in the electoral commissions at a Land level but also allows the ruling political party or coalition to designate all the key members as well as a majority of members in each commission. The German system lacks any legally mandated political impartiality or safeguards by empowering the executive branch at a federal or state level (ie the ruling party) to a greater extent than what would normally be adequate for absolute impartiality.
France has a more politically orientated system at a local level, with the composition of the local electoral commissions (bureaus) being determined in accordance to the specific candidates and political groups taking part in the elections. The judiciary also plays a part primarily in the oversight commissions that are in charge of controlling the electoral bureaus. At a national level, France implements an apolitical system, where by it entrusts the Constitutional Council, an administrative, technocratic, non-political body, with the duties of overseeing the electoral process.
The Netherlands and Norway have adopted a method of nomination that grants maximum political discretion to the ruling party at a national, regional or local level and does not implement any of the legal balances seen in Azerbaijan (mandated equilibrium between ruling party and opposition) or Germany (the presence of judges in certain commissions).
CONCLUSIONS AND ANSWERS
The comparative analysis of the electoral legislative provisions of Azerbaijan, Germany, The Netherlands, Norway and France clearly shows that, at least in the case of the five countries, Azerbaijan is the only one which specifically attempts to balance the power and influence of political parties in all the electoral commissions, with France having a similarly balanced model but only at a local, polling station, level.
The criticisms of the system adopted by Azerbaijan is both unjustified and unfair considering that our analysis of the electoral laws of the aforementioned nations shows that in certain cases (Germany or The Netherlands) the Ministry of Interior, a part of the executive branch, is entrusted with nearly discretionary powers when it comes to nominations for the central electoral commissions.
Nor have the majority of the analyzed western nations enacted any legal provisions to counteract the potential influence that the governing political party may have on the electoral commission by way of deciding their composition, nor do most of them include special rules for the legal expertise and qualification of the members of the electoral bodies.
Considering these facts, with Azerbaijan having both the Apparatus and the Secretariat of the Central Electoral Commission as specialized, independent election administrations with full material and technical supply, we feel that the current system that ensures political parity in the formation of the Electoral Commission is the most adequate and balanced from the examined models.
Therefor while in principle agreeing that improvements are possible to the way the electoral commissions in Azerbaijan are organized and function, we feel compelled to reject the assumptions and observations of the NAM report in this matter as unsubstantiated by facts and lacking in-depth analysis especially by comparison to Western European legislative frameworks that have received almost no criticism in recent NAM reports but have weaker provisions concerning the political neutrality or impartiality of the electoral commissions nor any additional safeguards against potential abuse of power by the executive branch at either a national or local level.
ELECTORAL CAMPAIGN DURATION
“The public broadcaster noted its efforts to provide balanced coverage; however, several opposition parties stated that their views are rarely presented, particularly outside of the campaign period.”[G. MEDIA]
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK
The electoral campaign in the Republic of Azerbaijan can legally commence 23 days prior to voting day and any campaign activity (electoral agitation) must cease at least 24 hours before the ballot begins.[xxiii]
The German Federal law does not specifically define a precise duration for the electoral campaign, therefor allowing political parties a higher degree of freedom in terms of their public communication and tactics. In practical terms the announcement of the exact date of the elections made by the Federal President of Germany serves as the principal catalyst for triggering political campaigning, while the campaign in its usual form takes place in the last weeks prior to polling day.
There are no official regulations governing the exact duration of the electoral campaign. Political competitors nevertheless follow a traditional system whereby campaign activities are pursued normally starting one month in advance of the ballot day.[xxiv]
Pursuant to Norwegian law, there are no specific limitations on the duration of the electoral campaign, with political parties, customarily, engaging in specific campaign activities starting at the beginning of August and ending on Election Day.
For the elections for the National Assembly, the French law clearly stipulates a duration of exactly twenty days prior to the polling day.
Azerbaijan has a set interval of just over 3 weeks, France has established an interval of under three weeks, with none of the other examined nations have a legally mandated electoral campaign period. In each of the other cases however, custom and tradition as well as complementary legal requirements and practical considerations such as costs de facto dictate a campaign period of 3 to 5 weeks.
CONCLUSIONS AND ANSWERS
In practical terms Azerbaijan has a similar campaign duration with the other nations examined in this report. From a strictly legal perspective, France has the most stringent legal provisions, with only twenty days of legally sanctioned electoral campaign. Azerbaijan’s regulations being more generous that French legal provisions in this regard are also, in practical terms, on par with the de facto campaign duration in the other examined countries, despite their lack of specific terms and limitations!
“However, legal issues that have been the subject of longstanding OSCE/ODIHR recommendations remain unaddressed, including … mechanisms for handling complaints and appeals.”[B. LEGAL FRAMEWORK AND ELECTORAL SYSTEM]
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK
The legal provisions instituted by the Republic of Azerbaijan stipulate that complaints about potential violations of the electoral law may be filed by the interested parties within three days of the allegedly illegal decision or action being taken. All such motions are investigated by expert groups created at the Central Election Commission, consisting of nine members and at the Constituency Election Commission, consisting of three members.
The specific rules pertaining to the procedures for setting up the expert panels are determined by the Central Election Commission. If the relevant commissions receive complaints containing alleged criminal actions they are obliged, upon examination, to inform the Prosecutor’s office. If a complaint is not acted upon or dismissed by the Constituency Election Commission or the Central Election Commission, the petitioner has the right to appeal to the Central Election Commission and the Court of Appeal respectively.
If a court of law cancels a decision of the election commission the relevant commission is obliged to issue a new decision pertaining to the matter or a superior election commission may proceed to do so in accordance to the ruling made by the court.[xxv]
The electoral commissions are responsible for determining the results of the elections at their respective levels of responsibility as well as for resolving all matters regarding the candidate registration process. Therefor limited appeals against electoral violations may be logged before the elections to the commissions.[xxvi]
The German Federal Parliament is ultimately responsible for the validation of the result of the elections through the electoral scrutiny procedure[xxvii], with limited avenues for contesting the results of the elections or specific issues outside of this procedure, as the Federal Election Act stipulates that “decisions and measures directly affecting the electoral procedure may only be contested by means of the legal remedies provided by this Law and the Federal Electoral Regulations and by way of the electoral scrutiny procedure”[xxviii] .
The decision of the Bundestag is drafted by the Election Scrutiny Board (of the Bundestag) which is established provided that the German Parliament is notified of an appeal and is approved by vote in the Parliament. The appeal can be filed by anyone eligible to vote or by the Land Returning Officer, the Federal Returning Officer or the President of the Bundestag. The appeal must be filed within two months of Election Day.[xxix] The (German) Federal Constitutional Court can hear appeals against the decisions taken by the Bundestag through its procedure for electoral scrutiny. [xxx]
Dutch law states that for certain electoral violations, specifically pertaining to the registration of a candidature process, appeals against decisions taken by the electoral commissions may be filed with the Administrative Jurisdiction Division of the Council of State, if the concerned party considers the ruling of the electoral commission as unjust in the specified instances.[xxxi]
As with all instances of serious violations, electoral law infringements which are of a criminal nature are dealt with by the criminal justice system through the penal courts of law. According to precedent rulings by the Netherlands Supreme Court, cases can be brought before the Civil Court, in instances of gross violations not specifically covered by other provisions (criminal law or administrative law). The lower house of parliament must validate the results and has the power to order total or partial recounts or initiate a new election after invalidating the results based on complaints filed by the interested parties.[xxxii]
In accordance to Norwegian law, in the case of parliamentary elections, any person who is entitled to vote may appeal against matters relating to the preparation and conduct of the elections in the county where the person is registered as a voter (elector). In all matters pertaining to the right to vote any person who is eligible to vote may file an appeal.
Appeals must be filed within seven days after the election or, in the case of appeals against the County Electoral Committee’s decision pertaining to the election result, within seven days of the decision being published. All appeals must be filed in writing to the Electoral Committee, the County Electoral Committee, the County Governor and the Administration of the Storting.
In all matters concerning the right to vote the Storting (Norwegian Parliament) is the appeal body while in all other cases the National Election Committee forms the appeal body.
In instances concerning the electoral lists, the decisions of the administrative commissions with compiling the lists can be appealed by the interested parties or the prefect in front of a court of law, with the decisions reached by the tribunal being final in all cases, preserving however the right to defer a matter to the competence of the Court of Cassation.[xxxiii]
In matters pertaining to candidatures for the National Assembly, the administrative tribunal is charged with solving any complaints or appeals[xxxiv].
Complaints resulting from potential violations of the electoral law during the course of the voting proceedings may be filed with the electoral commissions and their resolution is, in accordance with the provisions of the French Constitution, the responsibility of the Constitutional Council.[xxxv]
Azerbaijan enacts a dual framework, where by complaints are first dealt with by the independent electoral commissions, with an avenue of appeal to the judiciary (Courts of Appeal) being provided for the petitioner as well, both prior and after the elections.
France has a system that similarly combines the role of the judiciary with that of the electoral commissions, with the constitutionally stipulated provision that the Constitutional Council, a fundamentally and practically independent but politically appointed body, and not the courts, is ultimately responsible for overseeing the elections and resolving disputes pertaining to the voting process.
Germany only allows for limited and general reviews of potential infringements after the elections, with the main responsibility relying with the Federal Parliament, the legislative branch. The Constitutional Court may hear complaints to the decisions reached by the Bundestag in limited aspects, with disputes pertaining to the registration process or other infringements prior to the vote are dealt with by the respective electoral commissions.
Similar to the German system, The Netherlands provides for limited avenues of appeal, with the Parliament being responsible for the validation of the elections, while other infringements may, in certain particular case, be brought before the courts of law. Decisions taken by the electoral commissions during the electoral process, in general in matters regarding candidature or voter registration, may be appealed to the Administrative Jurisdiction Division of the Council of State.
Norway centers the electoral appeal process on the Parliament in cases pertaining to violations of the right to vote while other instances of electoral law disputes must be dealt with by the National Election Committee.
Overall Azerbaijan excludes the legislative branch from the appeals process by enabling decisions to be made by the Central Electoral Commission which is a more politically balanced institution while also providing for the judiciary to play a very active role. The other nations do not enact provisions aiming to eliminate a potential abuse of power by the ruling parliamentary majority and only allow for limited instances of appeal to the judiciary, in general when dealing with constitutional rights such as the right to vote.
CONCLUSIONS AND ANSWERS
Azerbaijan’s procedures for electoral appeals are at least on par with those enacted by other Western European nations, particularly taking into account the fact that the existing rules in Azerbaijan place the decisions and rulings of the judiciary in a primary position relative to the decisions taken by the parliament or the electoral commissions.
With the judiciary having the final say in all matters and with the electoral commissions’ only acting as bodies of first appeal in most cases, the current electoral appeals procedures can hardly become more impartial or apolitical.
Further compelling this fact is the current framework in place in the analyzed western nations where the judiciary only takes a secondary role in most instances, with the primary responsibility residing with the electoral commissions and the national parliaments, therefor with the political body and not with an independent or apolitical body.
Therefor we must conclude that while the specific mechanisms and rules of dealing with electoral appeals may benefit from enhanced provisions, the overall system cannot be objectively presented as lacking in impartiality or independence.
“Each potential candidate must submit 450 signatures of registered voters to their respective ConEC. Opposition parties and several other OSCE/ODIHR NAM interlocutors expressed concerns about potential pressure on voters to refrain from signing in support of their candidates. Concerns were also voiced about the fairness of the candidate registration process, either due to a selective interpretation of the law, the lack of opportunity to correct minor errors, or the rejection of legitimate signatures on the grounds of being falsified.”[E. CANDIDATE REGISTRATION]
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK
According to the Election Code of the Republic of Azerbaijan a minimum of 450 voter signatures should be collected in support of a candidate within the area of the constituency where he or she intends to run for office, for the candidacy to be valid under the law. Voters are able to sign in support of more than one candidate.[xxxvi]
There is no deposit prescribed during registration of the candidates or list of candidates for electoral process in Azerbaijan.
In order to register a candidate for elections in Azerbaijan, the authorized representatives of the candidate or the political parties or electoral alliances (blocs) must submit the necessary documentation to the relevant Constituency Election Commission no more than 50 and no less than 30 days prior to the voting day[xxxvii], upon which the commission is obliged to make a decision regarding the legal validity of the candidacy within no more than seven days.[xxxviii]
In Germany, in the case of constituency nominations, legally registered political parties that have been represented in the respective assembly during the last electoral cycle by at least five legislators can submit the documentation bearing the signatures of the members of the party’s executive committee in the specific Land where the constituency lies or, in the absence of such an executive structure, of the party’s committee at the next lower regional branch from the area of the constituency.
In situations other than nominations made by parties represented in the legislative assembly a further two hundred endorsement signatures from eligible voters in the respective constituency are necessary.[xxxix]
Further, the candidates themselves are subject to being nominated only if they have been democratically elected by their parties for the nomination at a members’ or delegates’ assembly.[xl] The voters that have endorsed a candidate can, by a majority of the signatories of the endorsement statements, withdraw the nomination.[xli] In regard to Land lists the nominations can only be submitted by political organizations trough the signatures of the executive committee of the Land branch of the party or, of the next lower regional branch of the respective constituency, when a Land branch does not exist.
If the parties making the nominations have not represented in the respective legislative body by at least five representatives during the last term, the candidate lists require a minimum of 0.1% of the eligible voters in the Land at the last Bundestag elections, but no more than two thousand persons. [xlii] The minimum number of signatures requirement is waivered in the case of nominations made by political groups representing national minorities.
The German Federal Election Act does not impose any minimum financial deposits in the case of electoral registration of candidates, either individually or as a part of a political group list. The German Federal Law stipulates that candidates can be nominated by both political parties and persons eligible to vote by submitting the proper legal documentation to the Constituency Returning Officer in the case of constituency nominations or to the Land returning Officer in case of Land candidacy lists, no later than sixty nine days before the election date[xliii]. Political parties that have not had at least five representatives in the Federal or Land legislative assemblies may only submit nominations as parties if they give notification of their intention to participate in the elections at least ninety seven days before the voting day.[xliv] The Constituency Electoral Committee and the Land Electoral Committee shall approve or reject nomination submissions on the fifty eight day before the election.[xlv]
The lists of candidates for the parliamentary elections require the support of at least thirty eligible voters from the electoral district to which the list applies. The voters who wish to sign a declaration of support must do so in person, no more than seven days before nomination day, at the clerk’s office of the municipality where he or she is registered as a voter. Voters are precluded from signing more than one declaration of support and may not retract their signatures. Political groups that have gained seats in the last elections are exempt from the provisions and requirements regarding the minimum number of signatures.[xlvi]
In accordance to Dutch law, for the election to the House of Representatives, each group of lists of candidates may only be registered if a minimum deposit of 11.250 euro has been paid. Lists submitted by political groups or parties that have gained seats at the last elections are exempt from this requirement.
The deposit shall be returned after the elections on condition of the list of candidates for which it has been paid gaining a number of votes at least equal to 75% of the minimum electoral quota, otherwise being forfeited to the State.[xlvii] The electoral quota is equal to the total number of votes casted divided by the number of seats that are contested in the election.[xlviii]
The Dutch law provisions for nominations for the parliamentary elections (for the lower house) to be made in the Tuesday between the 18th and 24th of January, the year of the elections, with the general elections taking place in March, or in the Tuesday between 29th of March and 4th of April, if the general elections take place in May the same year. In the case of an early election, the nominations must take place within no forty days of the date of the royal decree of dissolution, on a specific day of the week as stipulated in the decree.[xlix]
The Norwegian legal provisions require a minimum of two members of the executive committee of the party’s local branch, if the party is legally registered and gained no less than five hundred votes in one county of Norway or five thousand at a national level. In other situations, for parliamentary elections, no fewer than five hundred signatures of eligible voters must be gathered for the endorsement of a candidate list, while for municipal elections no less than two percent of the eligible voters in the respective municipality must sign in support of a list of candidates.[l]
Norway does not require candidates or parties that submit lists of candidates to make any form of minimum mandatory financial deposits for registration in the electoral process.
According to the provisions of the Norwegian “Representation of the People Act”, the submission of candidate lists proposals can be made no later than March 31st in the year of the election[li], with the parliamentary elections taking place in September, every four years and local government elections being held in September, the second year of the Storting’s term (Norwegian Parliament)[lii], therefor the deadline for submitting candidates lists being no less than five months before the voting day.
French legal provisions stipulate that, for the parliamentary elections, candidatures must be submitted in person by the candidate or his legally mandated alternate, to the prefect’s office, no later than the fourth Friday preceding the Election Day.[liii] Candidates as well as their alternates, the persons designated to replace them in the case they cease to be able to perform the duties of their office if elected, must be legally eligible to stand for elections, including not violation one of the numerous incompatibility provisions which pertain mostly to independent civil servants, judges and military personnel.
When applicable, for the second round of the elections, candidates must submit new legal documentation no later than the first Tuesday following the polling day.
The French Republic does not impose any additional conditions for persons wanting to submit their candidature, other than being over the age of eighteen, being an eligible voter and not being incompatible with the office of deputy in the National Assembly.[liv]
In terms of an absolute number of signatures, Azerbaijan has the theoretically the highest legal requirements, with a minimum of 450 valid endorsement signatures being necessary. In the other nations examined in this analysis, for registered political parties that have gained seats in the national parliament (The Netherlands and Germany) or have attained a minimum number of votes at the last elections (Norway) the submission of the necessary documents and the signatures of the executive leaders of the party (in certain cases only at circumscription level) suffice. France does not impose any special requirements in terms of endorsement signatures for the parliamentary elections.
However, in situation other than those mentioned, Norway requires 500 unique valid signatures for a candidature to be registered at the national elections, with Germany requiring 200 and The Netherlands 30, which implicitly signifies the fact that parliamentary parties are subject to easier legal constraints than other groups.
Further, while Azerbaijan specifically allows for voters to sign in support of multiple candidatures thus making the registration process easier, the Netherlands imposes a one candidate endorsement rule and a supplementary burden on the voter by demanding their physical presence in front of a public authority when signing, while Germany enables the signatory voters to also windrow their endorsement thus nullifying the candidature if a majority of them acts upon this provision as well as requiring the candidates to have been nominated in an internal electoral process by the party.
Azerbaijan, Germany, France and Norway do not impose any financial restrictions for the purposes of registering a candidature, while The Netherlands requires political groups that are not represented in the parliament to make a mandatory deposit which can be forfeited to the state if a minimum number of votes is not obtained in the electoral process thus raising a barrier for new and limited appeal democratic initiatives in regard to their participation in the electoral process at a national level.
In terms of the stringency of the timeframes for registration, The Netherlands has adopted the shortest intervals, followed by Azerbaijan, with one and three weeks respectively. Germany and Norway do not impose a specific interval but do impose a deadline of roughly 10 and 21 weeks prior to Election Day respectively. In this regard The Netherlands requires candidatures to be legally submitted roughly only 7 weeks in advance of the polling day, while Azerbaijan and France have the most relaxed and advantageous provisions for the candidates, with only 4 weeks prior notification required. France however also requires a second registration procedure for the second round of parliamentary elections, therefor making the regulations existing in Azerbaijan the least demanding in this particular matter.
CONCLUSIONS AND ANSWERS
As the analysis clearly shows, when compared to the high standards of traditional Western European democracies, Azerbaijan has instituted a balanced system that provides both for sufficient time for potential candidates to register in the electoral competition as well as for moderate requirements regarding their registration process while not discriminating between parliamentary parties and other political actors. Considering the fact that Azerbaijan doesn’t impose any supplementary burdens on the candidates or their supporters, such as The Netherlands or Germany specifically do, and seeing how the laws enacted by most of the other nations examined here put small, non-parliamentary, political parties at a clear disadvantage, we feel that the current legal framework in place in Azerbaijan is adequate and permissive.
Regarding the opinion based objections and concerns raised in the NAM such as the “potential pressure on voters to refrain from signing in support of their candidates”, we reaffirm the fact that any such actions constitute a criminal offence that needs to be immediately signaled to the relevant and competent authorities with facts and proof and we reject the inclusion of said concerns in an official document without substantiated and concrete examples that are actionable by the relevant authorities.
Further, taking into account that voters can sign for more than one political candidate according to Azerbaijan’s electoral law, the allegations are exceptionally disingenuous as, even in an extreme case scenario, it is logically inconceivable that a political party with even limited appeal and support would not be able to find 450 eligible voters willing to sign in support of it, not the least from voters that have already signed in favor of other opposition groups or candidates.
Finally, the nominal duration of the registration process is highly optimal from both a practical and international standards point of view, especially considering the efforts undertaken in order to provide the electoral commissions with all the infrastructure necessary for operating with high efficiency, including buildings and modern equipment in particular designated for the lower level Constituency Electoral Commissions, therefor enabling them to process swiftly any applications and submissions made by the interested parties.
Therefor we feel compelled to reject the notion that candidate registration process in Azerbaijan raises any significant difficulties for interested parties, be them political groups or independent candidates, particularly by comparison to the processes enacted by western democracies.
“At the same time, several OSCE/ODIHR NAM interlocutors raised concerns that there has been no easing of restrictive provisions on exercising freedoms of assembly, association and expression.”[B. LEGAL FRAMEWORK AND ELECTORAL SYSTEM]
“Representatives of opposition parties informed the OSCE/ODIHR NAM that they often face difficulties in obtaining authorization for public meetings and, when approved, that they are often confined to venues that are not easily accessible.”[F. CAMPAIGN ENVIRONMENT AND CAMPAIGN FINANCE]
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK
Participants in the electoral campaign, including candidates, political parties or groups as well as the mass media, have the right to hold public – electoral – gatherings in accordance to the general provisions instituted by the Constitution of the Republic of Azerbaijan in Article 47 – Freedom of thought and speech[lv] and Article 49 – Freedom of meetings.
The general rules determined in the Constitution stipulate that propaganda provoking racial, national, religious and social discord and animosity is prohibited as well as guaranteeing the right of peaceful public gatherings with prior notification given to the authorities[lvi].
The basic principle governing the undertaking of public electoral gatherings in Germany is the right to freedom of assembly as enshrined in Article 8 of the Basic Law of the Federal Republic. Pursuant to the provisions of this article the Bundestag is entitled to enact restrictions for outdoor assemblies.[lvii] The core restrictions that apply inter alia to electoral gatherings require organizers to notify the authorities 48h prior to holding the event and enable the authorities to disperse or prohibit gatherings that pose a threat to public safety or order, including in instances where the message they promote may affect the human dignity of other groups or incite to racial hatred.[lviii]
As with all other public gatherings, electoral gatherings in the Netherlands are protected by constitutional law and regulated by specific legal provisions enacted by Parliament. Article 9 of the Constitution of the Kingdom of the Netherlands guarantees the right of assembly and enables the Dutch Parliament to regulate and restrict it in order to protect health, in the interest of traffic and to combat or prevent disorders.[lix]
The Public Assemblies Act enables municipal authorities – mayors – to lay down specific rules requiring prior notification for holding public gatherings as well as ordering the ending of such gatherings in situations where they violate existing rules. Further, the law stipulates that violations to set restrictions may constitute minor penal infringements punishable by up to two months in prison or a second category fine.[lx]
The Norwegian Constitution guarantees the right of assembly, through the provisions of Article 101, while at the same time enabling the state to forcibly disperse such meetings that disturb the public peace.[lxi]
The French Electoral Code provides for nominal regulation of the public electoral assemblies organized by the candidates or their parties during the electoral period by referring to the implicit laws that generally provide the conduct for such gatherings.[lxii]
The law regulating public gatherings specifically allows for public gatherings to take place without prior notification given to authorities, if the organizers comply with rules meant to ensure public order.[lxiii] The French Penal Code provides for rules and situations in which the authorities may disperse public gatherings, especially in situation that may endanger other members of the public.[lxiv]
All the countries analyzed have special provisions either in their fundamental laws or specific laws that, while guaranteeing the right to peaceful assemblies, including ones of a political nature, do nevertheless provide for protections against violence and disturbances as well as incitement to hate. In regard to the potential variability and inconsistency of the rules, The Netherlands has the most decentralized rules by allowing local municipal authorities to assume much of the responsibility for regulating such gatherings, while Germany, France, Azerbaijan and Norway have more centrally mandated provisions.
CONCLUSIONS AND ANSWERS
The fundamental rules concerning public gatherings in general are not different in the case of Azerbaijan, with a distinct emphasis on separating the right of holding peaceful gatherings from other types of manifestations being clearly made in all the analyzed situations.
The criticisms against Azerbaijan on this matter cannot be substantiated by divergent legal provisions that would exist only in its case and not in other countries as this is obviously not true.
Further, in the case of Azerbaijan, the often cited increase in the number of fines related to this issue is logically linked to the fact that administrative fined were instituted in lieu of criminal proceedings that could result in prison terms, which has had a clearly positive effect on strengthening and encouraging the exercise of the freedom of assembly by all parties. A complete abolition of any penalties would however be both unrealistic, highly impractical and not in line with international standards that aim to guarantee not only the rights of those organizing such events but also the security and dignity of the public in general. The legal provisions instituted by Azerbaijan also make a clear and notable distinction between the participants to illegal gatherings and the organizers, with the organizers being most likely to be held accountable for any unlawful behavior, as is the case in all western nations.
Therefor any concrete observations should be made with specific examples and not allegations, examples in which the legal provisions for public gatherings have not been respected by the responsible officials and where the organizers of said gatherings and manifestations have – successfully or otherwise – taken the issue to a court of law.
In the absence of such examples and with the fundamental legal guidelines regarding freedom of assembly not being in any way obstructive in their rules in Azerbaijan as compared to western nations, we can only conclude that at least in regard to this matter, the NAM report is fundamentally based on opinions expressed by interested parties and not legal facts or concrete examples where potential wrong-doing or faulty regulations can be addressed.
“In accordance with OSCE commitments, the law provides for citizen and international election observers, as well as for authorized representatives of candidate representatives. Although several civil society organizations expressed an intention to observe the upcoming elections, many stated that a lack of financial resources would likely restrict their activities, particularly as a result of changes to NGO legislation that limit the possibility to receive foreign funding.”[I. ELECTION OBSERVATION]
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK
The Electoral Code of the Republic of Azerbaijan provides for candidates, political parties, political blocs, and, crucially, voters’ initiative groups to have the right to appoint each one observer to the Precinct Election Commission[lxv], with the right to monitor, inter alia, the vote counting process[lxvi]. Additionally, the law does not require such observers to be registered.
Further and separate from the regulations that provide monitoring rights to all interested domestic parties and voters’ groups, Azerbaijan has clearly stipulated the right of international observers to monitor the electoral process by submitting simple documentation forms to the Constituency Electoral Commission[lxvii], within a period from the time the announcement of the election date and until five days prior to the vote taking place.[lxviii]
Neither the German Federal Elections Act, nor other related laws, contains any specific provisions regarding election monitoring and observing missions[lxix] or any procedure to be followed by interested parties in order to attend the electoral process as independent observers, with certain accreditations being provided in special situations by the Federal Ministry of Interior.[lxx]
The monitoring of the electoral process is conducted in accordance to implicit provisions in the electoral code[lxxi] that stipulate its public nature and allowing for the electoral commissions to expel anybody that may cause disturbance from the polling stations[lxxii].
The Netherlands has made provisions for monitors and independent observers to be present in the polling stations, including foreign observers, pursuant to the Dutch Ministry of Foreign Affairs’ permission.[lxxiii] Voters are allowed to be present in the polling station during the voting process, enabling them to observer the conduct of the elections, provided they do not hinder the proceedings or cause disturbances.[lxxiv]
The legal framework allows for national and international observers from institutions or organizations to be accredited by the Norwegian government so that they may monitor parliamentary or municipal elections, with local authorities being legally bound to accept accredited election observers and allow for them to conduct their affairs as intended.[lxxv]
In regard to electoral observation and monitoring role played by non-governmental organizations, the law in force during the latest presidential (and parliamentary) elections in France in 2012 did not provide for an active or specific system that allows domestic or foreign NGOs to participate in monitoring missions.[lxxvi]
Candidates or their legal representatives have the right to monitor all the voting operation, including the vote counting process.[lxxvii]
Azerbaijan, The Netherlands and Norway specifically allow in their electoral laws for national and international observers to be present during the electoral process in the polling stations and monitor the conduct of the vote, provided they are authorized, with Azerbaijan specifically providing for voters’ initiative groups to be present without special registration, while The Netherlands gives the same rights in principle to voters and Norway requires registration by both national and international observers. France and Germany do not have special legal provisions or specific regulations for this purpose, while, in principle, permitting monitoring to take place.
CONCLUSIONS AND ANSWERS
While the concerns expressed by the NAM pertain to matters not directly related to the electoral process as potentially hindering the capacity of certain, particular, non-governmental organizations of supervising the conduct of the voting process, the monitoring regulations instituted by Azerbaijan are directly in line with those of the analyzed western nations, while in practice also allowing for domestic observers to conduct their missions without any hindrance that could be posed by the registration process.
Considering the all-encompassing and permissive nature of law adopted by the Republic of Azerbaijan for this purpose, as well as the fact that crossed monitoring by all interested parties and voters is not only permitted but facilitated, any concerns regarding the capacity of willing observers and voters to supervise the electoral process are unfounded.
“Although freedom of expression, media freedom and the right of access to information are guaranteed in the Constitution, defamation remains a criminal offence, with a penalty of up to two years in prison, …”
“The OSCE/ODIHR has previously recommended that criminal defamation provisions be repealed in favour of civil sanctions.”[G. MEDIA]
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK
Under the law of the Republic of Azerbaijan, slander is a criminal offence punished with a fine of up to five hundred manats, imprisonment for up to six months or community work for up to one year. Malicious slander is punished with community work for up to two years, depravation of freedom for up to two years or imprisonment for up to three years.[lxxviii]
Insult is punished by a criminal fine of up to one thousand manats, community work for up to one year or up to six months imprisonment.[lxxix]
In Germany, personal honor is held to be protected against insults by provisions in the Criminal Code that make it a criminal offence with up to two years imprisonment[lxxx], against defamation with a prison sentence of up to two years in prison[lxxxi] and against malicious defamation with a sentence of up to five years in prison if committed publicly through the distribution of written materials[lxxxii], which, inter alia, may include newspaper articles.
Alternatively all the above mentioned violation can be punished with fines that go up to a theoretical maximum of 10.8 million euro and start at a minimum of 5 euro.
Defamation of a person involved in the political life is punishable by a prison sentence of up to five years, conditioned on the criminal offence impairing the official from performing the normal duties of their office.[lxxxiii]
Insults against the constitutional organs of the German state, including the federal council, federal parliament, federal government, federal president and the federal constitutional court, are punishable by up to five years imprisonment.[lxxxiv]
In The Netherlands slander is punished with a maximum sentence of up to six months imprisonment or a fine up to 8100 euro[lxxxv], libel with up to one year imprisonment or a fine of 8100 euro[lxxxvi], intentional libel or slander with up to two years imprisonment or a fine of up to 20250 euro[lxxxvii], and insult with a sentence of up to three months imprisonment or a fine of up to 4050 euro.[lxxxviii]
Public officials are afforded supplementary protection with punishments increased by up to one third as compared to situations where the violation was committed against a regular person[lxxxix], and, in situations involving false accusations against said officials, with up to two years imprisonment and a maximum fine of 20250 euro[xc].
The monarch is afforded a special status with offences being punished with up to five years imprisonment, the loss of various political rights or a fine of up to 20250 euro.[xci]
In Norway, simple defamation is a criminal offence punishable with up to three months imprisonment if committed against a person.[xcii] Aggravated defamation or behavior with similar consequences for the victim of the act is punishable by up to one year in prison. If the act is committed in aggravated circumstances such as by media vehicles it carries a sentence of up to two years imprisonment.[xciii] Intentional defamation of a person is punished by a maximum of three years imprisonment.[xciv]
The ruling monarch of Norway is further protected against defamation by provisions that institute a punishment of up to five years imprisonment.[xcv]
The royal house is also covered by special regulations that provide for the doubling of the normal punishments.[xcvi] In cases involving the monarch prosecutorial actions may be initiated only by the order of the King or with his consent.[xcvii]
The existing legal provisions in the French Republic establish insult as an offense punishable with a fine of up to 12.000 Euro.[xcviii] As an existing offence, defamation is explicitly defined and punished with a similar fine of up to 12.000 Euro.[xcix]
Further, the French Penal Code provides for explicit sanctions for non-public defamation and non-public insult, sanctioned by fines of the 1st class.[c] Public officials as well as important state institutions are afforded supplementary protection against defamation and insult, with sanctions rising to fines of a maximum of 45.000 Euro[ci], while invectives, while not directly tied to defamation or insult per se, are punishable with fines of up to 7500 Euro or 6 months imprisonment, including in situation where they are directed at national symbols such as the national flag or the anthem of the French Republic .[cii]
Out of the examined legislative provisions, considering that in all cases insult and defamation are criminal acts, France has the most permissive laws, with Azerbaijan, Norway and The Netherlands having the least harsh punishments that allow for imprisonment, with a maximum normal sentence of up to three years imprisonment (Azerbaijan and Norway) or 32 months (The Netherlands), provided, in the case of The Netherlands and Norway, that said criminal act is not committed against the monarch or the royal family, in which case the punishments increase.
Germany has imposed the longest prison sentences for insult and defamation, especially in cases involving public officials or symbols of state, with a maximum sentence of up to five years imprisonment.
In regard to the alternative criminal fine punishments, Azerbaijan has a maximum fine not exceeding 840 euros (1000 manats), while the largest fines can be found in Germany, with a theoretical maximum of 10.8 million euro.
CONCLUSIONS AND ANSWERS
The issue of defamation has traditionally been seen as one of the most contentious matters when discussing Azerbaijan’s legal framework. As the comparative analysis has shown, the defamation provisions in the Penal Code are not at all dissimilar from articles of Dutch, French, Norwegian or German laws and much milder in terms of the potential sentences that those which can be incurred for criminal offences in some western nations.
Also it is worth taking into account that while the NAM report does advise the repeal of defamation as a criminal offence in the case of Azerbaijan, the same cannot be stated in similar recent NAM reports for western nations. Further compounding this matter is the fact that in the European Union only the United Kingdom, Ireland, Estonia, Romania and Cyprus have decriminalized defamation and insult, with France, Croatia and Bulgaria in general punishing it by penal fines, with certain exceptions that do provide for prison sentences nevertheless, while still considering it a criminal offence, while the rest of the EU Member States maintain, in one form or another, stringent provisions and regulations concerning this issue, in particular when dealing with offences against public officials.
In light of these facts questions need to be raised in regard to the neutrality of the NAM report for Azerbaijan as the recommendation for decriminalizing defamation is obviously not part of a wider strategic direction taken by the OSCE for all of its member states but rather a punctual criticism reserved only for certain nations.
“It further provides that political parties and blocs participating in at least 60 constituencies are eligible for free airtime on the public broadcaster and free space in state-funded newspapers. Several OSCE/ODIHR NAM interlocutors noted that this provision would likely exclude a large number of opposition parties and independent candidates.”[G. MEDIA]
COMPARATIVE ANALYSIS OF THE LEGAL FRAMEWORK
According to legal provisions instituted in Azerbaijan, media organizations, including printed press, radio and television companies that are publicly financed are obliged to create equal conditions for all the participants in the electoral process, with expenses being covered by the state budget.[ciii]
Nevertheless, according to the law, the electoral campaign is not conducted through the broadcasting companies founded by state bodies due to the fact that state entities should hold a neutral position in the electoral process. This restriction, as specified above, does not concern public television and radio broadcasting companies.
Free airtime on television and radio companies with national coverage is afforded – in the case of parliamentary elections – to political parties or blocs with candidates registered in more than 60 single mandate constituencies or in more than half the municipalities, while free airtime in slots provided by media organizations with limited coverage is granted for candidates in single-mandate constituencies and political parties or blocs with candidates registered in more than one third of all municipalities.
The free airtime is distributed on an equal basis to all participants, in a random, lottery determined way, at each relevant level, with a total of no less than three hours a week for national media organizations.[civ]
Further, national, publicly funded, periodical printed press must afford at least 10% of the general volume for free political advertisement to political parties or groups that have submitted candidates in at least half of all the municipalities or in more than 60 single-mandate constituencies.[cv]
Political parties participating in elections to the German Parliament are, subject to reimbursement of costs, granted broadcasting time – in the month before the elections- if an election list of a party has been accepted for said party in at least one Land (federal state)[cvi]. Public media organizations provide airtime free of charge, with the exact amount being allotted to each political party proportionally to their relative presence in the Bundestag, as determined by the previous elections.[cvii]
Pursuant to provisions enshrined in the Media Act, political parties that participate in the elections and have previously obtained at least one seat in the lower house of parliament or have submitted candidates in all the electoral districts are entitled to be allotted free airtime on national television and radio by the Media Authority in the immediate period preceding the elections.
While there are no specific provisions pertaining to the exact duration of the airtime, in practice each of the participant political parties or groups receives an equal amount of free airtime which is then distributed in exact slots in a random order so as to ensure that no party is intentionally afforded a better broadcasting time slot for their electoral adverts. In the 2012 elections the Media Authority allocated 18 minutes of free television airtime and 20 minutes on radio for each of the qualifying political parties.[cviii]
The Norwegian Broadcasting Corporation (NRK), an institution under the authority of the Ministry of Culture, is charged with providing board and balanced political coverage starting from the premise that all parties and electoral lists over a certain size shall be covered in the normal manner by the editorial election coverage.
As a result the NRK airs various political debates on topics of its own choosing, usually in the month preceding the Election Day.[cix]
The Broadcasting Act has enshrined a number of limitations upon political advertisement in general, with implicit effects on the electoral campaign, in so far as it prohibits broadcasters from airing advertisements to promote political ends on television and it prevents political organizations from sponsoring broadcasts.[cx]
The French Electoral Code provisions explicitly for all the political parties and groups that are participants in the parliamentary elections to have access to the public radio and television services free of charge!
For the first round of elections the parliamentary parties have access to a three hour program equally divided between the ruling majority and the opposition parties, with the exact distribution being unanimously agreed by the representatives of the parties, or, if such an agreement cannot be reached, by decision of the parliament in accordance to the political representation of the groups.
For the second round of voting, a program of no less than one hour and thirty minutes divided according to the same principles will be aired. The non-parliamentary political groups may be granted access, upon their request, to public programs for no less than 7 minutes for the first round of elections and no less than five minutes for the second.[cxi]
The French law strictly forbids any use of commercial publicity for electoral purposes during the six months preceding the Election Day, therefor making candidates very reliant on public communication of a non-commercial manner and on secondary electoral publicity means put at their disposal by the state![cxii]
The least generous provisions can be found in Norway where there is no actual free campaign ad airtime for political parties or candidates, with provisions for electoral debates on public broadcasting services being enacted instead. Equally restrictive are the French rules that forbid commercial space being used by the interested parties.
The Netherlands, Germany, France and Azerbaijan provide free airtime for the participants in electoral campaigns on public broadcasters, with Germany allotting the broadcasting time proportionally to the current parliamentary representation of the parties, thus favoring the larger parties and implicitly the governing party, while The Netherlands, France and Azerbaijan provide for equal free airtime in slots determined by lottery method, with Azerbaijan imposing a mandatory minimum by law to ensure better public exposure opportunities for the smaller parties, while The Netherlands grants discretion to the media regulatory body in this respect.
CONCLUSIONS AND ANSWERS
Legal provisions instituted by the Republic of Azerbaijan for equal opportunities in regard to media access for all the candidates are clearly in line with accepted current procedures enacted by western nations.
Further, Azerbaijan does not adopt rules that aim to favor larger parties as some western nations do and compares favorably to them in terms of the amount of free airtime provided. As it has clearly been shown in the comparative analysis, unrestricted free airtime for all the candidates is not something that traditional democracies have adopted as it is clearly unfeasible.
Nevertheless Azerbaijan does have a two tier system where smaller groups or independent candidates are afforded free airtime in their respective constituencies.
Taking into account the above analysis, we can conclude that the concerns expressed in regard to media access are unfounded and unjustified seeing how the provisions made by Azerbaijan are not only on par with those made by western nations but are superior to some of them in regard to the amount of free airtime allotted to smaller candidates on national news media.
From a legal perspective, the regulatory framework imposed by Azerbaijan for the governance of its electoral process, when compared with the other nations whose legal provisions have been examined in the comparative analysis contained by this report, can be considered as both balanced and structurally stable, with few if any provisions that can be seen as potentially favoring the governing party.
This is especially valid when taking into account the principles upon which the electoral commissions are organized, with Azerbaijan having the most non-politically biased approach in this particular matter, which renders even more doubt upon the validity of the arguments and observations made in the NAM report in this particular matter.
Additionally, the provisions set by the Republic of Azerbaijan in respect to public media coverage are highly favorable for a democratic and participative electoral debate, being comparatively generous in terms of airtime and fair in terms of equal opportunities and access for all the candidates when analyzed together with similar rules enacted by several western nations.
In regard to one of the most contentious matters, the insult and defamation laws, Azerbaijan has regulated for penalties that are strictly in line with those that exist in the European Union and, if from our sample the case of Germany is to be taken into account, prove to be far milder in their sanctions.
Therefor we can conclude that most of the current regulations that are subject to criticism in the NAM report are, on closer observation and when compared to similar laws from established western nations, at least on par with them, with Azerbaijan proving a special inclination for more concrete rules, with less avenue for interpretation or potential manipulation than many Western nations have. Consequently many observations and criticisms expressed in the NAM report are doubtful considering the fact that other European countries with very similar or more stringent electoral laws are not subject to the same amount of scrutiny in their respective NAM reports.
Finally, one aspect of particular importance with the current OSCE document is the fact that many of the allegations it contains are not based on accurate factual data or legal provisions that the authorities of the Republic of Azerbaijan can take into account and undertake measures to redress or improve, but on opinions and considerations expressed by interested parties which are then taken, without any scrutiny, as facts and not merely points of view.
Therefor we urge all interested parties to center their observations on concrete data that can then serve as a reference point for any future efforts undertaken by Azerbaijan to improve its electoral system.
[i] Proportion of seats held by women in national parliaments, The World Bank, http://data.worldbank.org/indicator/SG.GEN.PARL.ZS
[ii] Act of 28 September 1989 containing new provisions governing the franchise and elections (Netherlands), Representation of the People Act (Norway), Federal Election Act (Germany)
[iii] GERMANY, ELECTIONS TO THE FEDERAL PARLIAMENT (BUNDESTAG), OSCE/ODIHR NEEDS ASSESSMENT MISSION REPORT 21-23 May 2013; NORWAY, PARLIAMENTARY ELECTIONS, OSCE/ODIHR NEEDS ASSESSMENT MISSION REPORT, 4-6 June 2013; THE NETHERLANDS, EARLY PARLIAMENTARY ELECTIONS, OSCE/ODIHR NEEDS ASSESSMENT MISSION REPORT 20-22 June 2012
[iv] Election Code of the Republic of Azerbaijan (Eng. Version), Art. 17 & 18, Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf
[v] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf, Art 24
[vi] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf, Art 30
[vii] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf, Art 36
[viii] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, Section 8, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf
[ix] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 9
[x] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), Chapter A, pg. 1, (Netherlands) Bulletin of Acts and Decrees 2009, no. 452
[xi] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter E 11, pg. 7
[xii] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter E 1-5, pg. 6
[xiii] Representation of the People Act (the Election Act – Norway), Chapter 4, pg. 8 & 9, https://www.regjeringen.no/globalassets/upload/KRD/Kampanjer/valgportal/Regelverk/Representation_of_the_People_Act170609.pdf
[xiv] Representation of the People Act (the Election Act – Norway), Chapter 4, pg. 8 & 9, https://www.regjeringen.no/globalassets/upload/KRD/Kampanjer/valgportal/Regelverk/Representation_of_the_People_Act170609.pdf
[xv] (French) CONSTITUTION OF OCTOBER 4, 1958, Art 58 & 59, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/constitution/constitution-of-4-october-1958.25742.html
[xvi] (French) Electoral Code, Art R40, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[xvii] (French) Electoral Code, Art L85-1, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[xviii] (French) Electoral Code, Art R93-2, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[xix] (French) CONSTITUTION OF OCTOBER 4, 1958, Art 56, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/constitution/constitution-of-4-october-1958.25742.html
[xx] (French) Electoral Code, Art R42, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[xxi] (French) Electoral Code, Art R43, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[xxii] (French) Electoral Code, Art R44, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[xxiii] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 75
[xxiv] EARLY PARLIAMENTARY ELECTIONS 12 September 2012 OSCE/ODIHR ELECTION ASSESSMENT MISSION REPORT, OSCE/ODIHR, Chapter VI, pg. 10, http://www.osce.org/odihr/elections/97291?download=true
[xxv] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 112
[xxvi] FEDERAL REPUBLIC OF GERMANY ELECTIONS TO THE FEDERAL PARLIAMENT (BUNDESTAG) 22 September 2013 – OSCE/ODIHR Election Expert Team Final Report, OSCE/ODIHR Chapter VII, pg.10, http://www.osce.org/odihr/elections/109518?download=true
[xxvii] Law on the Scrutiny of Elections, Federal Law Gazette I, page 1501, Section 1, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/wahlpruefungsgesetz_engl.pdf
[xxviii] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 49
[xxix] Law on the Scrutiny of Elections, Federal Law Gazette I, page 1501, Section 2 & 3, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/wahlpruefungsgesetz_engl.pdf
[xxx] Law on the Scrutiny of Elections, Federal Law Gazette I, page 1501, Section 16, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/wahlpruefungsgesetz_engl.pdf
[xxxi] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter D, pg. 4 & 5
[xxxii] THE NETHERLANDS EARLY PARLIAMENTARY ELECTIONS OSCE/ODIHR Mission Report , OSCE/ODIHR, Chapter
G., pg.8, http://www.osce.org/odihr/92155?download=true
[xxxiii] (French) Electoral Code, Art L25 & L27, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[xxxiv] (French) Electoral Code, Art L159, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[xxxv] (French) CONSTITUTION OF OCTOBER 4, 1958, Art 58 & 59, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/constitution/constitution-of-4-october-1958.25742.html
[xxxvi] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 147
[xxxvii] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 58
[xxxviii] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 60
[xxxix] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 20
[xl] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 21
[xli] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 23
[xlii] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 27
[xliii] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 19
[xliv] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 18
[xlv] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 28 & 26
[xlvi] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter H, pg. 12-14
[xlvii] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter H, pg.16
[xlviii] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter P, pg. 44
[xlix] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter F, pg. 7 & 8
[l] Representation of the People Act (the Election Act – Norway), Chapter 6.3, pg. 10 & 11 https://www.regjeringen.no/globalassets/upload/KRD/Kampanjer/valgportal/Regelverk/Representation_of_the_People_Act170609.pdf
[li] Representation of the People Act (the Election Act – Norway), Chapter 6.1, pg. 9 https://www.regjeringen.no/globalassets/upload/KRD/Kampanjer/valgportal/Regelverk/Representation_of_the_People_Act170609.pdf
[lii] Representation of the People Act (the Election Act – Norway), Chapter 9, pg. 15 https://www.regjeringen.no/globalassets/upload/KRD/Kampanjer/valgportal/Regelverk/Representation_of_the_People_Act170609.pdf
[liii] (French) Electoral Code, Art L157, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[liv] (French) Electoral Code, Art L154, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[lv] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 74
[lvi] The Constitution of the Republic of Azerbaijan, Article 47 & 49
[lvii] Basic Law for the Federal Republic of Germany , Article 8 (2), pg. 18, https://www.bundestag.de/blob/284870/ce0d03414872b427e57fccb703634dcd/basic_law-data.pdf
[lviii] Comparative Study: Freedom of Peaceful Assembly in Europe, Max Planck Institute for Comparative Public and International Law, 2014, Chapter Germany (4), pg. 59 & 60, http://www.venice.coe.int/files/Assemblies_Report_12March2014.pdf
[lix] The Constitution of the Kingdom of the Netherlands 2008, Article 9, https://www.government.nl/documents/regulations/2012/10/18/the-constitution-of-the-kingdom-of-the-netherlands-2008https://www.government.nl/documents/regulations/2012/10/18/the-constitution-of-the-kingdom-of-the-netherlands-2008
[lx] PUBLIC ASSEMBLIES ACT, (Dutch) Bulletin of Acts and Decrees 157, Amended, Bulletin of Acts and Decrees 573
[lxi] The Constitution, as laid down on 17 May 1814 by the Constituent Assembly at Eidsvoll and subsequently amended, most recently in May 2014 https://www.stortinget.no/globalassets/pdf/constitutionenglish.pdf
[lxii] (French) Electoral Code, Art L47, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[lxiii] Law of June 30th on the freedom of assembly, Art 1, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070164&dateTexte=20150907 and Law of March 28th on public gatherings, Art 1, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000314861&dateTexte=20150907
[lxiv] (French) Penal Code, Article 431
[lxv] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 36
[lxvi] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 40
[lxvii] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 44
[lxviii] Election Code of the Republic of Azerbaijan (Eng. Version), Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf Art 40
[lxix] ELECTIONS TO THE FEDERAL PARLIAMENT (BUNDESTAG) 2013, OSCE/ODIHR Final Report, Chapter IV, http://www.osce.org/odihr/elections/109518?download=true
[lxx] ELECTIONS TO THE FEDERAL PARLIAMENT (BUNDESTAG) 2009, Chapter X, OSCE/ODIHR Report, http://www.osce.org/odihr/elections/germany/40879?download=true
[lxxi] ELECTIONS TO THE FEDERAL PARLIAMENT (BUNDESTAG) 2009, Chapter X, OSCE/ODIHR Report, http://www.osce.org/odihr/elections/germany/40879?download=true
[lxxii] (German) Federal Election Act, (German) Federal Law Gazette I p. 1084, http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf Section 31
[lxxiii] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter J 39, pg. 29
[lxxiv] Act of 28 September 1989 containing new provisions governing the franchise and elections (Elections Act), (Netherlands) Bulletin of Acts and Decrees 2009, no. 452 Chapter J 35, pg. 29
[lxxv] Representation of the People Act (the Election Act – Norway), Chapter 15, Art 15-10, pg. 29, https://www.regjeringen.no/globalassets/upload/KRD/Kampanjer/valgportal/Regelverk/Representation_of_the_People_Act170609.pdf
[lxxvi] FRANCE PRESIDENTIAL ELECTION 2012 OSCE/ODIHR NEEDS ASSESSMENT MISSION REPORT, Chapter III.B
[lxxvii] (French) Electoral Code, Art L67, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[lxxviii] Azerbaijan Criminal Code Article 147
[lxxix] Azerbaijan Criminal Code Article 148
[lxxx] German Criminal Code §185
[lxxxi] German Criminal Code §186
[lxxxii] German Criminal Code §187
[lxxxiii] German Criminal Code §188
[lxxxiv] German Criminal Code §90
[lxxxv] Dutch Criminal Code §261
[lxxxvi] Dutch Criminal Code §595
[lxxxvii] Dutch Criminal Code §262
[lxxxviii] Dutch Criminal Code §266
[lxxxix] Dutch Criminal Code §267
[xc] Dutch Criminal Code §268
[xci] Dutch Criminal Code §111-113
[xcii] Norway General Civil Penal Code Section 246
[xciii] Norway General Civil Penal Code Section 247
[xciv] Norway General Civil Penal Code Section 248
[xcv] Norway General Civil Penal Code Section 101
[xcvi] Norway General Civil Penal Code Section 102
[xcvii] Norway General Civil Penal Code Section 103
[xcviii] Law of July 29th on the freedom of the press, Art 33, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070722&dateTexte=20150907
[xcix] Law of July 29th on the freedom of the press, Art 32, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070722&dateTexte=20150907
[c] (French) Penal Code, Article R621-1 & R621-2
[ci] Law of July 29th on the freedom of the press, Art 30 & 31, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070722&dateTexte=20150907
[cii] (French) Penal Code, Article 433-5
[ciii] Election Code of the Republic of Azerbaijan (Eng. Version), Art. 77, Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf
[civ] Election Code of the Republic of Azerbaijan (Eng. Version), Art. 80, Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf
[cv] Election Code of the Republic of Azerbaijan (Eng. Version), Art. 83, Elections Information Center, http://www.msk.gov.az/uploads/qanunvericilik/election_code_eng.pdf
[cvi] Interstate Treaty on Broadcasting and Telemedia (Interstate Broadcasting Treaty), Art 42, pg.28, http://www.uni-muenster.de/ITMCATR/wp-content/uploads/2009/05/Interstate-Treaty-on-Broadcasting.pdf
[cvii] Elections to the Federal Parliament (BUNDESTAG), OSCE/ODIHR MISSION REPORT, Chapter H, http://www.osce.org/odihr/elections/103583?download=true
[cviii] The Netherlands Early parliamentary elections, OSCE/ODIHR Mission Report, Chapter VIII (C), pg. 13 & 14, http://www.osce.org/odihr/elections/97291?download=true
[cix] NORWAY PARLIAMENTARY ELECTIONS 2013, OSCE/ODIHR MISSION REPORT, Chapter H, pg. 10 & 11, http://www.osce.org/odihr/elections/103545?download=true
[cx] (Norwegian) Broadcasting Act, Chapter 3, https://www.regjeringen.no/en/dokumenter/broadcasting-act-/id420612/
[cxi] (French) Electoral Code, Art L167-1, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239
[cxii] (French) Electoral Code, Art L52-1, http://www.legifrance.gouv.fr/telecharger_pdf.do?cidTexte=LEGITEXT000006070239