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Rights of observers

23.11.2017 9:30

This is an area in which international obligations, in particular those relating to transparency and access to information, are of direct relevance.

Rights of Observers

Article 13 of the Electoral Law

This is an area in which international obligations, in particular those relating to transparency and access to information, are of direct relevance.

 

Proposed amendment

  • Proposal to add a right to receive information regarding voting

International standards

UNCAC Article 13 (1): Each State Party shall take appropriate measures, within its means and in accordance with fundamental principles of its domestic law, to take such measures as may be necessary to enhance transparency in its public administration, to promote the active participation of individuals and groups outside the public sector, in the prevention of and the fight against corruption…This participation should be strengthened by such measures as: (b): Ensuring that the public has effective access to information…

The right of transparency and access to information is born from the guarantee that the right to free expression includes the ability for everyone to seek and receive information and ideas. Freedom of information and access to information may be subject to certain limited restrictions, based on national security; protecting territorial integrity; public safety; maintaining the authority and impartiality of the judiciary; prevention of disclosure of information received in confidence; protecting the rights and freedoms of others; the destruction of other established rights; or to protect personal data.(ICCPR Article 19(2): CIS Convention on Human Rights Article 11(1)).

Since a strict legalist reading of the existing law only provides the right for observers to obtain information about results of counting and reports about results, the proposed amendment would appear to harmonise Belarus law with existing Belarus international commitments.

Proposed amendment

  • Proposal to add a right to record the conduct of elections, including the vote counting process, by technical means including audio, photography and video

Photographing and recording the conduct of elections may easily raise serious issues of the secrecy of the ballot, both in its reality and in the perception of voters.Many election laws and regulations therefore prohibit photography while voting:

Comparative material

Republic of Korea, Election Act 2010, Article 166-2:

Ban on photographing ballot papers in polling stations (in order to combat the possibility of vote buying)

USA 2016: 16 of 50 states prohibited photography while voting

However, this is not universal:

Comparative material

Russian Federation, Law on Election of Deputies to the State Duma 2014, Article 33 (12)

12) carry out in the polling station (from the place, which is defined by the chair of the Precinct Election Commission) photo and (or) video recording, preliminary notifying the chair, deputy chair or secretary of the precinct election commission

What is the balance of advantage between secrecy of the ballot and transparency of polling procedure in Belarus?

Photographing and recording of counting of votes, however, is now becoming specifically accepted in some countries:

Comparative material

Republic of Korea, Election Act 1994 amended up to 2012, Article 180(8):

A party or candidate representative at the count may, at any time, go round the ballot counting place to watch or take a photograph of the ballot-counting situation, and install telephones, computers and other communication equipment at such places as designated by the chairman of the election commission in the ballot-counting place or the general spectators' gallery, and use such equipment to inform a candidate or political party of the ballot-counting proceeding.

India, Election Commission of India Instruction SI 68, 2011:

11. Each counting table shall have one separate video camera/webcam which shall record all contents displayed on the display panel of the EVM from the beginning to the end of counting continuously in a CD. For each counting table this video/webcam should be connected to an electronic display screen (Monitor) to facilitate clear visibility of the contents on display panel of EVM to the counting agents. In other words, while the video camera is recording the matter displayed on the EVM, the display matter should simultaneously be projected on Monitor for counting agents to watch and note.

11A. The web-cam/video cameras should be fixed on a stand and the place where Control Unit (CU) has to be kept should be marked with a marker pen so that after each round of counting when the fresh set of CUs are brought, the readjustment of webcam/video camera is not required. The webcam/video camera should be positioned in such a way that these do not hinder the view of display panel of CUs for the 3 candidates and their agents. The power cable for webcam/video camera etc. should run along the barricades/wire-mesh in such a way that no official or any other person is required to overstep the cable.

11B. Small placards should be prepared in advance indicating AC no. & name, PS no. and date of counting of votes, These placards should be placed before the each CU correctly so that CU is identified at a glance to which PS and which AC belongs to

12. In addition, in each counting hall there shall be a sufficiently large blackboard/whiteboard on which the candidate’s name and round number will be prewritten (since the numbers of rounds are already planned). After every round, once the Observers have certified, the results of that round should be written on that board. ONLY after that the EVMs for next round shall be brought from the strong room to the counting hall.

Note: India uses electronic voting machines, which are not closed and tallied at the polling station but brought to a counting centre.Issues of practicality would arise in using the system above based on manual polling station counting.

 

Taiwan 2015

The Central Election Commission reversed a previous ruling and allowed photography and recording at the count (although it remains specifically prohibited during polling).

Proposed amendment

  • Proposal to add a right to observe counting

The current Article 13 and current practice do not establish a right of observation of counting.The proposed amendment would appear to harmonise Belarus law with existing Belarus international commitments.

 

International standards

CCPR (the UN Human Rights Committee, established under the ICCPR) General Comment (GC) 25: There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes

CCPR judgment C/IRN/CO/3, Islamic Republic of Iran (2011): The Committee notes with concern [with regard to the presidential election of 2009] that international observers were not allowed entry to monitor the election results

OSCE ODIHR Review of Electoral Legislation and Practice in OSCE Participating States, 2013:

Instances of on-site obstruction to or restriction of international and/or domestic/civil society observers were noted in Belarus (lack of access to some stages of the process, including the count)

 

Comparative material

Russian Federation, Law on Election of Deputies to the State Duma 2014, Article 32 (5):

On the voting day and on the days of early voting, from the time a precinct election commission begins its work and until it is notified by the higher election commission about acceptance of the protocols of vote returns and also when votes are recounted, the persons listed in parts 1 and 1.2 of this Article as well as observers, including foreign (international) observers, may be present at polling stations. Observers, including foreign (international) observers may be present in other election commissions when these commissions are determining the voting results, election results, working on voting results protocols, election results protocols and when votes are being recounted.

Article 33 (6):

An observer shall be entitled to:

7) look at any completed or uncompleted ballot during the vote count as well as observe the completion of the vote returns protocol and other documents during the period specified in part 5 of Article 32 of this Federal Law;

9) familiarize oneself with the protocols of voting results, of election results, with the attached documents, receive copies thereof certified by respective election commissions, provided such protocols are completed by the commission to which the observer is delegated or by immediate lower-level commissions;

11) be present during the vote recount in respective election commissions;

 

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