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Opinions and studies in the electoral field

  • Codes of good practice 
  • General topics
  • Electoral law and electoral administration in Europe 
  • Gender equality in electoral matters
  • Minorities and elections
  • Summary of main reference texts
  • Useful links

 

  • Codes of good practice

Code of good practice in electoral matters

The first task of the Council for Democratic elections was to adopt a Code of good practice in electoral matters. This document defines not only the fundamental standards of the European electoral heritage, which are universal, equal, free, secret and direct suffrage as well as frequency of elections, but also framework conditions necessary for organising proper elections, such as respect for human rights, particularly in the political field, organisation of elections by an impartial body and an effective systems of appeal and observation.
 

The Code of Good Practice is a governing text aimed at promoting the harmonisation of electoral standards and at serving as a reference for evaluating elections. It was adopted by the Council for Democratic Elections and the Venice Commission and then approved by the Parliamentary Assembly of the Council of Europe and the Congress of Local and Regional Authorities of Europe. In a Declaration adopted at ministerial level the Committee of Ministers of the Council of Europe also expressed its support for the Code. It is therefore the reference document of the Council of Europe in the field of elections.
 

The Code is directed at electoral specialists (members of electoral commissions, University lecturers) as well as observers, politicians and, more generally, at all citizens who are electors.


Code of good practice on referendums

In March 2007, the Venice Commission adopted the first version of the Code of Good Practice on Referendums, which is the counterpart of the Code of Good Practice in Electoral Matters. This document, the revised version of which was adopted in 2022, primarily sets out the principles of European electoral heritage applicable to both referendums and elections (universal, equal, free, secret and direct suffrage) and the conditions for implementation of these principles (rule of law, respect for fundamental rights, stability of the law, organisation of control by an impartial body, existence of an effective appeal system in particular), by adapting them to the particular features of the referendum. In the final part, it emphasises the specific rules applicable to the referendum, such as the unity of matter and form. The guidelines stress that a constitution or law must clearly define the effect of the referendum and that a quorum is not desirable, and develop certain principles relating to the popular initiative, in particular by suggesting the possibility of declaring it partially invalid.

 

  • General topics

First of all, the Venice Commission deals with general topics in electoral matters. Apart from the “Code of good practice in electoral matters” and the Code of good practice for referendums (revised guidelines, previous version with the explanatory report), the Commission elaborated, for instance, reports on:

 

The Venice Commission regularly adopts opinions in the electoral field (about 150 so far). In recent years it adopted opinions on legislation on elections, referendums and political parties of Albania, Armenia, Bosnia and Herzegovina, Bulgaria, Georgia, Kosovo, Kyrgyzstan, the Republic of Moldova, Montenegro, North Macedonia, Türkiye, Venezuela, Ukraine and Uzbekistan. The vast majority of opinions are prepared jointly with the OSCE/ODIHR.

 

In its opinions, the Venice Commission underlines that successful electoral reform is built on at least the following three elements:

1) clear and comprehensive legislation that meets international standards and addresses prior recommendations;
2) adoption of legislation by broad consensus after extensive public consultations with all relevant stakeholders;
3) political commitment to fully implement the electoral legislation in good faith.

 

  • Electoral law and electoral administration in Europe 

In 2006, the Council for Democratic Elections and the Venice Commission adopted the “Report on Electoral Law and Electoral Administration in Europe. Synthesis study on recurrent challenges and problematic issues” . Since, important developments have taken place in the Council of Europe (CoE) member states. While remarkable progress has been made in some countries, there are signs of regress in others. Some electoral provisions and practices are still or have become cause for concern. The 2020 Report on the same issue provides a comprehensive and detailed overview of both improvements as well as remaining and new challenges in the electoral legislation and the electoral administration in Europe against the background of international standards and good practices in electoral matters, which have been observed since the 2006 report. This report has been prepared on the basis of a systematic review of electoral processes in Council of Europe member states, taking into account opinions, reports and studies of the Council of Europe and the OSCE/ODIHR as well as academic literature from electoral experts.


The 2020 report concludes that challenges remain in relation to the various fundamental principles of electoral law (universal, equal, direct, secret and free suffrage). It points to a number of problems both in the campaign period (e.g. misuse of incumbency, state positions and public resources for electoral purposes, unbalanced coverage of parties and candidates in the media, negative campaigning), on election day (e.g. multiple voting, vote buying, ballot-box stuffing and incorrect vote counting and tabulation) and thereafter (e.g. lack of broad legal standing for lodging complaints and appeals in the case of electoral irregularities and no effective follow-up to such complaints and appeals). The report also sheds light on the way in which the Internet and social media have fundamentally changed the nature of electoral campaigns. It stresses that responsible digital electoral campaigning and political advertising requires action from political contestants, social media platforms and public authorities.

 

  • Gender equality in electoral matters

The Commission also addressed the issue of gender equality in several of its documents. In its Declaration on Women’s Participation in Elections, it stated that Implementation of the parity principle may lead to:

1.         Elections by a list system

-          The obligation to ensure the candidates’ lists alternate men and women;
-          The refusal to register lists which do not respect such an alternating composition.

2.         Elections in single-member constituencies

-          The obligation to ensure a balanced percentage of women and men amongst candidates of the same party;
-          Dissuasive sanctions in case of non-respect of this obligation.
 

This declaration was followed by the Report on the Impact of Electoral Systems on Women's Representation in Politics. This report concluded that there is a wide variety of socio-economic, cultural and political factors that can hamper or facilitate women’s access to parliament. However, even if they are not the only factors exercising an influence on women’s representation in parliament, both the electoral system and gender quotas can strongly influence women’s parliamentary representation. The following combination, theoretically, appears to be favourable: PR list systems in large constituencies and/or a nationwide district, with legal threshold, closed lists and a mandatory quota which provides not only for a high portion of female candidates, but also for strict rank-order rules and effective sanctions for non-compliance. Having said this, it should be noted that the electoral system, apart from favouring women’s representation, can also pursue other political aims, such as, for instance enabling the formation of stable governing majorities and ensuring a close voter representative relationship. Since some of the objectives are antagonistic, no electoral system fulfils all requirements completely. Consequently, the appropriateness of an electoral system is dependent on the political aims which are given priority in a particular socio-cultural and political context.
 

  • Minorities and elections

In the framework of its work on the participation of persons belonging to national minorities in public life, the Venice Commission has adopted a document on “Electoral law and national minorities”. This text underlines that only a few States provide for specific rules on the representation of minorities in the elected bodies.

 

The participation of members of national minorities in public life through elected office therefore results not so much from the application of rules specific to  minorities, as from the implementation of general rules of electoral law, adjusted, if need be, to increase the chances of success of the candidates from such minorities.

 

The Venice Commission however, had the opportunity to analyse specific rules on minority representation in two documents: the Report on Electoral Rules and Affirmative Action for National Minorities' Participation in decision-making process in European countries and the Report on Dual Voting for Persons belonging to National Minorities. The former report shows that a number of States have interesting electoral rules with affirmative action goals and that, in most of these States, such rules are introduced as isolated elements. In addition, electoral rules promoting affirmative action are generally of limited scope, particularly in terms of the exact number of beneficiaries determined by the Constitution or the legislation. Such rules appear to be particularly effective when applied in local elections. Despite the controversial nature of affirmative action, there are a considerable number of affirmative action mechanisms in the electoral sphere that are consistent with the European electoral heritage. The latter report concluded that dual voting is an exceptional measure, which has to be within the framework of the Constitution, and may be admitted if it respects the principle of proportionality under its various aspects. This implies that it can only be justified if:

(1) it is impossible to reach the aim pursued through other less restrictive measures which do not infringe upon equal voting rights;
(2) it has a transitional character;
(3) it concerns only a small minority.

 

  • Summary of main reference texts

Principles for fundamental rights - compliant use of digital technologies in electoral processes

This Study builds on the Commission’s Report on digital technologies and elections of 2019 and includes a set of principles addressed to law makers and major actors in this field, such as powerful internet companies. 

 

It stresses the need to find the right balance between different fundamental rights and interests at stake and it includes eight principles centred on freedom of expression in the digital environment, removal by private companies of clearly defined third-party content from the internet at the request of a competent impartial body, the open internet and net neutrality – which are among the basic principles of the internet and recognised in European standards –, personal data protection, periodical review of rules and regulations on political advertising and on the responsibility of internet intermediaries, regulations and institutional capacities to fight cyberthreats, international co-operation and public-private co-operation as well as self-regulatory mechanisms. It also refers to the ongoing co-operation of the Commission with other relevant Council of Europe bodies, namely the Ad Hoc Committee on Artificial Intelligence (CAHAI), the European Committee on Democratic Governance (CDDG) and the Committee of Experts on Media Environment and Reform (MSI-REF), which are preparing new legal instruments relating to the use of artificial intelligence and of digital technologies more generally, including during electoral processes.


Report on election dispute resolution

This document stresses the crucial importance of an effective system of complaints and appeals, in line with the guidelines of the Commission’s “Code of good practice in electoral matters". It has been developed on the basis of the electoral legislation of 59 of the 62 member states of the Commission at that moment. This report offers a unique comparative approach to the issue of electoral disputes on an international scale, beyond the European framework. After developing the existing international instruments, the report examines the effectiveness of the electoral appeals systems in member states, highlighting strengths and weaknesses of the relevant legislation and its implementation. It covers all the relevant issues including competent bodies; grounds for complaints and decisions, actions or inactions open to challenge; persons entitled to lodge complaints – standing; time limits; other procedural issues; and decision-making power. The report concludes that most of the domestic laws and their implementation regarding various aspects of election dispute resolution systems could be improved, as regularly underlined by opinions on electoral legislation as well as by election observation reports.

 

The “Report on election dispute resolution” also reflects the case law of the European Court of Human Rights. Importantly, it refers to the case of Mugemangango v. Belgium of 10 July 2020, where the Court makes it clear that regardless of which body decides on the validity of election results, the law must guarantee procedural safeguards, such as impartiality, precise norms to limit the discretion of the authority, guarantees of a fair, objective and reasoned decision, in order to prevent arbitrary decisions and to be in accordance with the European Convention on Human Rights. Under these conditions, a judicial or judicial-type remedy, whether at first instance or following a decision by a non-judicial body, is in principle such as to satisfy the requirements of Article 3 of Protocol No. 1 to the Convention. The Court partly followed the 2019 Venice Commission’s Amicus curiae brief on the procedural safeguards which a state must ensure in procedures challenging the result of an election or the distribution of seats. The European Court of Human Rights partly followed the 2019 Venice Commission’s Amicus curiae brief in its judgment Mugemangango v. Belgium of 10 July 2020. 

 

Guidelines on an internationally recognised status of election observers

Following a request of the Parliamentary Assembly, the Venice Commission adopted Guidelines on an internationally recognised status of election observers.

 

The main points of these guidelines may be summarised as follows:

  1. Both national and international observers should be given the widest possible opportunity to participate in an election observation exercise. Non-partisan national observers should be permitted to take part.
  2. Observation must not be confined to the election day itself. It must cover the pre-voting phase, the voting phase, as well as the post-voting phase. It must therefore include the candidate registration and, if necessary, the voter registration period, as well as the electoral campaign. It must make it possible to determine whether irregularities occurred before, during or after the elections. It must always be possible during vote counting and includes complaints and appeals procedure, publication of the final results, up to taking up office of elected officials.
  3. Election observation should be possible at any level (national, regional, local) both for international and domestic observers.
  4. Accreditation should be as straightforward as possible and open to partisan as well as non-partisan observers, and should not be restricted by geographical or time-related obstacles.
  5. Observers should be given the widest possible access to all places and persons linked to the electoral process. In particular, the places where observers are not permitted to be present should be very clearly specified by law.
  6. Observation missions should be guaranteed the freedom to issue, without interference, public statements and reports; to make suggestions or comments to the authorities; to obtain copies of electoral documents.

 

Observers have not only rights but also duties. This includes compliance with national legislation, not obstructing the electoral process, as well as impartiality and the absence of conflict of interest. They have to act in a professional manner.


Report on timeline and inventory of political criteria for assessing an election

This report concluded that elections are more than technical matters. Electoral processes are part of an agreement between citizens and the government that represents them. Elections are indicative of how a government treats and respects citizens through a wide range of institutions and processes. In its turn, the quality of an election is derived from the quality of the process and generally reflects the level of democracy in a society. An election is best judged politically on how fully the principles for a democratic election are observed and implemented in a State. In this context, a State’s openness to the international scrutiny of an electoral process bodes well for the prospects of a further fine-tuning of its democracy. In contrast, for a State’s unwillingness to invite international election observers is a criterion in itself and should give rise to serious concerns and be followed up by international institutions, even though there is no legal obligation of a State to invite international observers. Moreover, an election marred by mass scale, gross systemic violations puts into question the legitimacy of the thus elected Office, being aware that legitimacy is the most precious product of truly free and fair elections.

 

Guidelines for preventing and responding to the misuse of administrative resources during electoral processes

The main purpose of the Guidelines is to avoid public resources, whether financial or in-kind, being used during electoral processes for or against electoral stakeholders. After detailing the main principles applicable to the use of administrative resources (Rule of law, political freedoms, impartiality, neutrality, transparency, equality of opportunity), the Guidelines address ways of preventing and responding to misuses. Preventive measures include the adoption of specific legal provisions, audit, information and awareness-raising, without forgetting political will. Proper responses include complaints and appeals mechanisms, as well as sanctions.
 

These Guidelines address lawmakers who are invited to make use of them in order to reinforce the existing legislation on the use of administrative resources during electoral processes.

 

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