IN THE NAME OF THE REPUBLIC OF ARMENIA
OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF ARMENIA
ON THE CASE OF THE DISPUTE ON THE RESULTS OF THE ELECTIONS FOR RA PRESIDENT HELD ON MARCH 5, 2003
Yerevan April 16, 2003
The Constitutional Court of the Republic of Armenia chaired by the President of the Constitutional Court G. Harutiunian, represented by the Deputy President of the Constitutional Court V. Hovhannissian, the Constitutional Court Members A. Gyulumian, F. Tokhian (except the sitting held on April 16, 2003), H. Nazarian, R. Papayan, V. Poghossian, V. Sahakyan, M. Sevian,
with the participation of
A. Sargsyan, V. Dalakyan, T. Manaseryan, the representatives of the plaintiff S. Demirchyan, the candidate for President of the Republic of Armenia,
the respondent, H. Abrahamyan, T. Mukuchyan, G. Nersesyan, the representatives of the RA Central Electoral Commission,
pursuant to Clause 3 of Article 100 and Clause 3 of Article 101 of the Constitution of the Republic of Armenia, to Clause 3 of Article 5, to Clause 3 of Article 25, and to Articles 57 of the Republic of Armenia Law “On the Constitutional Court”,
From April 03, 2003 to April 16, 2003 considered in a public hearing the case “On the dispute of the results of the elections for RA President held on March 5, 2003”.
The case was initiated by the candidate for President of the Republic of Armenia; S. Demirchyan’s petition filed with the Constitutional Court.
Having examined the petition of the candidate for President of the Republic of Armenia S. Demirchyan at March 26, 2003 session, the Constitutional Court of the Republic of Armenia made a procedural decision to accept the case for hearing and in conformity with Articles 39, 40 and 57 of the Republic of Armenia Law “On the Constitutional Court”, the Constitutional Court designated the RA Central Electoral Commission as respondent.
In order to prepare the case for examination following the procedure of Article 36 of the Republic of Armenia Law “On the Constitutional Court” and to present the circumstances of the case, the Constitutional Court Members A. Gyulumian, H. Nazaryan and M. Sevyan were appointed as reporters.
Having heard the reports of the RA Constitutional Court Members A. Gyulumian, H. Nazaryan and M. Sevyan, having examined the explanations, mediations and suggestions of the representatives of the plaintiff and the respondent, explanations of the CEC Chairman A. Sahradyan invited as a witness and as well as having investigated the petition and other existing documents of the case, the Constitutional Court of the Republic of Armenia
1. The Elections for President of the Republic of Armenia were held in two rounds: the first round was held on February 19, 2003. Having summarised the results of elections held on February 19, 2003, on February 25, 2003 CEC drew up the decision 27-N on implementation of runoff of the Presidential Elections of the Republic of Armenia between Robert Kocharyan and Stepan Demirchyan to be held on March 5, 2003.
Results of the first round of elections were appealed at the RA Constitutional Court by the Candidate for RA President A. Geghamyan, whose petition on recognition of the results of elections held on February 19, 2003 as null and void was declined by the RA Constitutional Court by the decision SDO-408 drawn up March 24, 2003. The second round of the elections for President was conducted on March 05, 2003 within the timeframes stipulated by Article 51 of the RA Constitution.
2. In compliance with the procedure established by Article 82 of the RA Electoral Code in the day of RA Presidential elections of March 05, 2003 in voters lists there were included two candidates for RA President who received enough votes in the first round of elections, that is Stepan Demirchyan and Robert Kocharyan.
Having summarised the final results of elections on March 11, 2003, the CEC issued a summarisation protocol, according to which in accordance with the voters lists in precincts the total number of voters compiled was 2,331,507. 1,595,702 voters took part in the elections. Precinct Electoral Commissions (PEC) were given 2,423,018 ballot papers, 826,782 ballots of which were cancelled. In the ballot boxes were found 1,595,438 ballot papers, 32, 367 of which were recognised as invalid. There were 14,501 ballots were the vote was cast against all candidates. The number of votes given in favour of the combined candidates was 1,548,570. The number of votes given to candidates was cast in the following way: Stepan Demirchyan 504,146 and Robert Kocharyan 1,044,424. The size of discrepancies was 1062. By the majority of votes of the CEC members (7 for, 0 against, 1 abstaining, one member of the commission did not participate in the vote) in compliance with the decision 36-A made on March 11, 2003 Robert Kocharyan was elected as President of the Republic of Armenia.
3. On March 17, 2003 the Candidate for President of the Republic, Stepan Demirchyan applied to the Constitutional Court and by arguing that in the course of preparation, organisation, implementation and summarisation of the results of elections, key principles of the electoral right established by the RA Constitution were violated, i.e. the equality, freedom and confidentiality of elections, the expression of free will of voters was infringed, demanded to recognise the elections of March 05, 2003 invalid.
The plaintiff finds that:
4. In order to establish the existence of the above-mentioned violations on substantial grounds the plaintiff brings as evidence documents attached to his application, the discrepancies of the statistical data found in the officially published results and in summary protocols provided them by 33 precinct electoral commissions, analysis of the results of voting from different precincts, as well as conclusions of the election observation missions.
In order to give grounds to the position of the plaintiff attached to the application there were also presented applications addressed to electoral commission and the Office of the General Prosecutor, complaints, protocols made by proxies, copies of TEC protocols, list of dead or absent people, copies of certificates of proxies, passports of citizens and ballots; according to the pagination the total was 1617 pages, but in fact it is 1607 pages, 281 of which referred to the first round, 220 pages are repeating documents, 305 pages are lists of those citizens who, as per the application, are out of the Republic or are dead, 105 pages are copies of certificates, passports and ballots, and 10 pages are blank forms.
5. In regards to the documents submitted by the plaintiff the respondent contends that RA CEC summarised the results of elections in compliance with the Electoral Code of the Republic of Armenia, and there are no ground to recognise the results of elections as null and void because:
6. Upon the demand of the Constitutional Court the Central Electoral Commission presented the following documents on the organisation and implementation process of elections:
Copy of the protocol of the CEC 11.03.2003 sitting, copy of the summarisation protocol of the results of elections of March 5, 2003, copy of the decision 36-A drawn up on the basis of the latter and copies of special opinions of CEC members, as well as copies of summarisation protocols from all 56 TEC and copies of special opinions presented by members of those commissions, reference from all 56 TEC concerning verification activities and their results prescribed by Clause 10 of Article 62 and Article 40 of the RA Electoral Code implemented on the basis of the written demands of proxies for the candidates and PEC members who submitted special opinions, normative acts and instructions approved on the implementation of the RA Electoral Code concerning the elections of the RA President in compliance with Clause 7 of Article 41 of the RA Electoral Code, reference concerning application – complaints and results of discussions over the application – complaints received by the CEC regarding the elections of March 05, 2003, reference on changes implemented in compositions of electoral commissions after February 20, 2003 and grounds for these changes, reference made in compliance with Clause 2 of Article 82 of the RA Electoral Code on printing procedure and quantity of ballot papers ordered at the ballot printing organisation, as well as concerning the number of printed ballot papers, copy of the decision on defining a procedure for registering proxies by CEC in accordance with Clause 3 of Article 27 of the RA Electoral Code, as well as the list of proxies who received certificates and were registered according to Article 27 of the RA Electoral Code.
References were received from the RA Prosecutor-General on statements and the process for discussion of these statements concerning violations of electoral legislation in the course of the presidential elections of 2003.
From the council of court chairmen of the Republic a reference was requested and received: copies of PEC decisions concerning the results of elections, complaints presented to courts of general jurisdiction of the Republic against CEC activities (omissions), as well as copies of decisions on subjecting some persons to the administrative responsibility in regards to illegal demonstrations and marches held after February 20, 2003.
7. Elections held on March 05, 2003 were organized and the results of elections were summarized in compliance with Article 15 of the RA Electoral Code in 1,865 polling stations established all over the Republic. According to Item 3 of the same Article, election commissions were also formed abroad in the RA diplomatic and consular representations. In compliance with the Article 31 of RA Electoral Code, the elections were conducted through a three-tier Election Commission system. The whole process of the election was organized and supervised by the Central Election Commission.
8. The various violations mentioned by the plaintiff refer to 417 precinct election commissions. The representatives of the plaintiff emphasized that the violations’ facts must be considered verified in the PEC, where the request was submitted in regards to verification of the factual results of the election with the protocols. Such a request was submitted to 235 PEC of the mentioned ones. The proxies submitted such request to 141 precinct election commissions, whose judicial status was disputed at the Constitutional Court. Territorial Election Commissions checked the compliance of the protocols of 45 precinct election commissions with the factual results of the elections.
9. Item 8 of the Copenhagen Document of 1990 of the OSCE mentions that the participation of the local and international observers may raise the authority of the election process in the country, where elections are being conducted and for that reason the respective country invites observers to observe the elections in the framework prescribed by the law.
Twelve international and 31 domestic organizations that implemented observation mission during the preparation, implementation, and summarization were accredited in accordance with the defined procedure of Article 29 of the Electoral Code. According to the Article 30 of the Electoral Code the observers were given the opportunity of functioning throughout the election process. The conclusions in regards with the second round of the elections were given by the Parliamentary Assembly of the Council of Europe, OSCE Office for Democratic Institutions and Human Rights, CIS observation missions as well as domestic organizations implementing observation mission.
10. In the course of investigating the case it became obvious that parties have different interpretation of provisions of Article 40 of the Electoral Code and in the issue of court appeal of voting results. The Constitutional Court finds:
1. The legislator in Article 40 of the Electoral Code does not precisely separate the dual function of territorial election commissions. According to that Article, the latter summarizes election results during majoritarian parliamentary elections and disputes regarding its decision in that case is subject to jurisdiction of the constitutional court (Article 116, Clause 8), while during proportional parliamentary elections and Presidential election territorial election commission summarizes voting results, which are submitted to CEC to summarize election results;
2. Clause 1 of Article 40 of the RA Electoral Code emphasizes “Decisions, actions and inactivity of election commissions, with the exception of the decisions of the territorial election commission on the summarization of voting results, can be appealed to a superior election commission or court...”. Clause 2 of the same Article establishes that “The decisions of the territorial election commission on summarization of election results are appealed to the Central Election Commission”. Clause 3 of Article 62 of the Code establishes that summarization protocols of elections in a constituency are made “Not later than within 48 hours after the completion of voting, and in case of complaints in the court, or territorial election commission on the results of voting in the precincts – not later than in 5 days...”. Clause 3 of Article 63 obliges CEC “...based on the complete final results of the elections in constituencies, not later than within 72 hours after completion of the voting, and in case of the complaints in the court or territorial election commission on the results of voting in the precincts – not later than in 6 days...” to compile election summarization protocols;
3. It is obvious that the legislator has separated the order of court appeal of voting results of precincts from order of their appeal in territorial election commissions. However, within the framework of this case, opportunities of court appeal of precinct voting results were not emphasized, there is no fact of such appeal.
The RA legislation created wider possibilities for court defense of suffrage. Specifically, Article 153 of the RA Civil Procedure Code foresees that “a citizen, a party (alliance of parties), which find that a decision, action (inaction) of a state body, local self-government body or authorities thereof has violated its right to elect or to be elected, may apply to a court investigating civil cases”. Article 154 of this Code obliges that such an application be investigated within 5 days after its receipt, but no later than the day of election, and an application received on the day of election shall be investigated immediately. Study of materials available in the case and results of investigation also show that there weren’t any legal violations related to precinct voting process appealed to courts through a special claim procedure by the Applicant or persons authorized to do so.
In the documents attached to the Application presented to the Constitutional Court and in the course of the investigation there are only indications of various reports, statements, protocols and other writs on this matter presented in various ways. There is no basis for considering this as evidence. In accordance with the references provided by the RA Office of Prosecutor General there were 150 complaints received regarding election-related violations, out of which 88 relate to the second round. Overall 14 criminal cases were initiated, in regard to 76 complaints initiation of a criminal case was rejected due to absence of a criminal incidence or corpus delicti, in regard to 60 preparation of materials continues. There isn’t a verdict, a court decision or court ruling in regard to any legal violation.
On the other side, study of materials of investigation and decisions of Yerevan Center and Nork-Marash, Kotayk and Armavir courts of first instance in regard to claims on elimination of inaction of territorial election commissions, shows that the courts have shown strictly formal approach to issues of court defense of suffrage in court.
11. In accordance with the Clause 7 of Article 61, out of approximately 1000 summary protocols received by Applicant’s proxies, summary protocols of voting results of 33 polling stations were presented by the Applicant to the Court. Data of these protocols, as per the Applicant do not correspond to the published official data. Out of these, protocols of polling stations 0498 and 1063 are missing a seal, while the protocol of polling station 0635 is not signed and sealed. In polling stations # 0018, 0242, 0444, 0492, 0502, 0507, 0508, 0510, 0515, 0521, 0523, 0529, 0538, 0550, 0553, 0748, 0779, 0842, 0865, 0909, 1000, 1011, 1065, 1230, 1340, 1341, 1361, 1524, 1657, 1784 summary protocols of voting results were made by results of 5 March 2003 election. Copies of these protocols were provided in accordance with the established to the proxies of the candidate. Later, as per the Applicant, protocols presented to TEC's were altered:votes for Presidential candidate S. Demirtchyan were decreased, while votes votes for Presidential candidate R. Kocharyan were increased, or there are numeric deviations between prtocols provided to candidate proxies and final calculations. As a result of the investigation of the case and expertise of the presented protocols it was found that in polling stations 0242, 0492, 0510, 0523, 0529, 0909, 1230 and 1657 there were adjustments to final numbers of voting as a result of verifications implemented in accordance with the order and within a framework established by the law. In regard of the remaining 22 polling stations arguments brought by the Applicant have not been refuted in the Constitutional Court.
Such facts and ballot box stuffing, open voting, incorrect vote count incidents, illegal circulation of envelopes foreseen for commissions and ballots in individual polling stations, biased treatment by media, voter impersonation and other, even limited number of examples presented in the case, witness that concerns of the OSCE observation mission regarding March 5, 2003 Presidential Election are fair.
12. Investigation of the case shows that election commissions left out of their focus the effective control over the pre-election campaign. This mission was undertaken by non-governmental organizations or observers. Requirements of Article 11 of the RA Law “On Television and Radio” also weren’t implemented with due consistency. As a result, there was not only a biased treatment in the media, but also reported violations of legal and moral norms in individual coverage instances.
For Candidates equal opportunities are closely connected to formation of opinions by voters and assumes neutrality of state bodies in regard to the election process, specifically, pre-election campaign and media coverage. However, based on international legal standards, the principle, according to which pre-election campaign must be honest and fair, may not be interpreted to such an extent as to exclude the freedom of speech and the right to receive information.
13. Investigation of the case shows that institute of proxies had a special importance in defending interests of the Applicant, since he was not represented with a sufficient counterbalance in the commissions. However, a number of proxies were subjected to administrative detention in the second round and were deprived of the possibility of further active actions. Subjecting to administrative detentions for participation in unauthorized gatherings and demonstrations is an interference with the right of freedom of peaceful gatherings foreseen in Article 11 of the European Convention for Protection of Human Rights and Fundamental Principles. Such interference is in contradiction with the Article 11 of the Convention in cases when such interference is “not foreseen by the law”, does not follow any reasonable purpose established in the Clause 2 of the Article 11 and is “not necessary in the democratic society” in order to achieve those purposes.
After studying decisions of the courts of general instance in regard to proxies, the Constitutional Court finds that first of all such application of the institute of administrative detention in the country is in contradiction with European standards for the rule of law, and second - both the form and the content of decisions of similar nature made by the courts must be subject for discussion in both the RA Council of Court Chairmen and RA Council of Justice.
14. Investigation of the case shows that the issue related to status and powers of a proxy has also become a subject of various interpretations in the election process.
The RA Electoral Code gives a special importance to the institute of proxy as to a subject of electoral legal relations, a bearer of the function of protecting electoral right and implementing control over the election process. In relation to state-wide elections, a number of the RA Electoral Code Articles (7, 9, 18, 27, 30, 34, 41, 42, 47, 54, 55, 57, 61-63) establish provisions, which ascertain the framework of legal relations, in which proxies realize rights and bear responsibilities. Analysis of all these Articles of the Electoral Code and specifically Articles 27 and 30 (which establish the status, rights, obligations and order of activity of proxies) shows that:
It is obvious, that each proxy is a legal subject in some concrete relationships and can realize his/her rights and bear responsibilities only within the framework of those relationships. Naturally, the Electoral Code was created based on the presumption of reasonability and assumes that a proxy following the work of an election commission on the voting day in any concrete polling station, and not being an immediate bearer of legal relations related to election processes in other polling stations or constituencies, can not dispute results of such, moreover tens of such polling stations.
15. The second sub-Clause of Clause 1 of Art 30 of the Electoral Code establishes that a proxy an observer, a representative of media has a right to “get familiarized without impediments, with the electoral documents, ballot specimens, decisions of electoral commissions, protocols of the sessions, protocols of the sessions, to receive their copies and to make excerpts. Clause 7 of Art 61 and Clause 8 of Art 62 of the Code also establish that precinct and territorial election commissions, at the request of a candidate proxy or an observer, provide to them copies of corresponding protocols certified by the signature of a chairman or a secretary of the commission and the seal of the commission. Mainly based on this norms, many proxies have requested to present to them copies of voters lists containing signatures of people who have taken part in voting.
In relation to this issue the Constitutional Court finds that the provision to receive copies of documents established in Article 30 of the Electoral Code refers to session protocols and protects the legal position approved in October 2002 by the Council of Europe's “Democracy through right” European Commission’s full session, in accordance to which voter lists already signed and filled by voters are considered one of the elements of secrecy of the ballot and are not subject for publication. However, this does not assume that voter lists may not be examined during verifications performed in accordance with the order prescribed by the law.
16. The RA Electoral Code establishes a 5-day period for territorial election commissions to form summarization protocols after investigating complaints related to voting results of precincts by a given territorial commission or courts. Neither the Code nor the CEC have established a precise order for reviewing complaints addressed to election commissions. This allows for subjective interpretations or biased approach. The Constitutional Court finds that such an order shall be established both for territorial election commissions and for the CEC and shall specify authorized subjects who can file complaints, order and timeframes for receiving, registering and discussing complaints.
In the same time the Constitutional Court takes a record of the fact that within the framework of this case also, the Central Election Commission and some territorial election commissions have interpreted the requirements of the Article 62.10 of the Electoral Code in a unique way and in a number of cases have simply made it impossible to realize a legal demand of a candidate proxy regarding voting results. Constitutional Court’s legal position on this issue is expressed in CCD-408 point 9.
17. The Constitutional Court finds that the dispute presented by the Applicant regarding the issue of creation of a constituency in Nagorno-Karabakh is not a subject for legal position of the Constitutional Court, on one side considering the present status of Nagorno Karabakh, and on the other side in terms of not interfering and not endangering the process of peaceful regulation of this fundamental issue.
Based on the results of the investigation of the case, considering legal positions established by Constitutional Court Decision CCD-408 on March 24, 2003, and based on Article 51, Clause 3 of Article 100 and Article 102 of the Republic of Armenia Constitution, Clause 3 of Article 5, Articles 67 and 68 of the Republic of Armenia Law “On Constitutional Court, the Republic of Armenia the Republic of Armenia Constitutional Court DECIDES:
1. During 2003 RA Presidential Election in individual precincts, specifically during voting and the vote count, there were such violations, which in their nature are not compatible with future democratic developments of the country. Those violations are incompatible with, in particular the obligations undertaken by the Republic of Armenia in Article 21 of the Universal Declaration of Human Rights, Article 3 of the first protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 25 of the International Covenant on Civil and Political Rights.
2. Considering the evidential facts available in the case, results of the investigation of the case, as well as court practice of the Constitutional Court, from the point of view of clarifying the criteria of approach to similar occurrences while investigating election related cases in the Constitutional Court, consider pointless the organization of verifications of results weeks after voting in polling stations where:
a. in the same polling station there were found official protocols on election results, which are significantly different from each other;
b. there are legally justified arguments that there were incidents of ballot box stuffing, incorrect vote count, voter impersonation and other significant violations, however where TEC’s rejected in an unjustified manner, and courts of general jurisdiction did not protect in a manner prescribed by the law the rights of the commission members and candidate proxies regarding organization of precinct results verification in timeframes and in an order prescribed by the law.
Considering: the requirement of the Constitution to protect the candidates’ right to be elected and the voters right to elect through free expression of will; the importance of ceasing electoral violations of indicated nature during upcoming Parliamentary elections and in future; as well as the necessity to raise the level of responsibility of bodies and people involved in organization and conduct of elections, the Constitutional Court during settlement of the election-related dispute considered the results from all polling stations indicated in categories a. and b. above unreliable. Thus, in order to evaluate the impact of unreliable results on the overall results of elections, the total difference in votes cast for candidates shall be reduced by the number of votes cast for the candidate who received more votes in such polling stations.
3. In accordance with the results of the March 5, 2003 election the results of the following polling stations shall be considered unreliable: 0018, 0444, 0502, 0507, 0508, 0515, 0521, 0538, 0550, 0553, 0748, 0779, 0842, 0865, 1000, 1011, 1065, 1340, 1341, 1361, 1524, 1784, 1262, 1263, 1264, 1266, 1268, 1270, 1253, 0989, 0990, 0736, 0702, 0369, 0363, 0352, 0346, 0347, 0220 and 0225.
4. In order to disclose all persons who committed election falsifications and violations in all indicated polling stations and to hold them accountable as prescribed by the law, materials shall be provided to the RA Office of Prosecutor General to organize a complex investigation and inform about the results of such investigation the Constitutional Court and the public before the 20th of May, 2003. Also, provide to the RA Office of Prosecutor General documents qualified as false during the investigation of the case in order to determine their authenticity, and in case of those documents being false to hold accountable in accordance with the law those responsible for creating those documents and putting them into circulation.
5. Considering the factual difference in votes for Presidential candidates as per the March 5, 2003 election result, the impact thereon of the size of discrepancies and the results recognized unreliable as a result of investigation of the case by the court; as well as evaluating the analytical material available in the case; and the impact of duly legally formulated and evidentially justified electoral violations of a qualitative nature on realization of active and passive electoral rights, keep unchanged the RA CEC Decision 36-A dated March 11, 2003 on electing a President of RA.
6. Based on the fact that there is an appointment to hold on May 25, 2003 RA Parliament Elections and Referendum on accepting the new edition of the Constitution, each of which separately has a crucial role in ensuring continuity of state power in a democratic way;
considering that on the level of constitutional solutions, for institutions of representative democracy, not only the legitimacy of their formation is important, but also important is the large continuous confidence of society in that process and state power;
emphasizing the importance of strengthening the constitutional order of the Republic of Armenia and the necessity for establishing civic harmony established in the Preamble of the Constitution;
stating the fact that in the circumstances of the yet imperfect constitutional democracy, the election-related dispute, which is of crucial importance for the destiny of the state, also has a deep socio-political sub-text based on lack of confidence and intolerance;
giving high importance to referenda and national quires as to special significance forms of immediate democracy and realization of people’s power, and of resolving issues of special importance for the state and establishing social confidence and people’s consent;
recommend to the newly elected RA National Assembly and the RA President, within one year, in the consonance to democracy and state of law to bring the RA Law “On Referendum” in compliance with the requirements of the first part of unchangeable Article 2 of the RA Constitution and to select the organization of a referendum of confidence as an effective measure to overcome social resistance deepened during the presidential election.
7. In accordance with part two of Article 102 of the Republic of Armenia Constitution this Decision is final, not a subject for review and shall be enforced from the moment of its publication.
OF THE REPUBLIC OF ARMENIA G. HARUTYUNYAN