Introduction
We, a group of civil society organizations, whose mission focus is the protection of human rights and guaranteeing the conduct of free and fair elections, in keeping with the Constitution and international standards, are proactively monitoring the electoral process for the local government bodies of May 14, 2023.
Albania has already begun EU accession negotiations and the local elections are the first electoral process after this stage, which is why they are an important test of the rule of law and of the capability of a series of institutional actors, including political parties, to create and implement higher electoral standards than in previous elections. Free and fair elections are a precondition for a functioning democratic system.
The civil society organizations evaluate as positive cooperation with the Central Election Commission, while we consider that further efforts aree needed to strengthen this cooperation and furhte renhance the CEC’s initiative to apply sanctions when the Electoral Code is violated. During the monitoring of previous electoral processes, we have noticed visible divisions among members in one of the leading bodies of the CEC, namely the CCS (Council on Complaints and Sanctions). We suggest the taking of measures to encourage cooperation among CCS members themselves, in the framework of strengthening the impartiality in the decision-making of this body.
In the last two decades, electoral reform remains a monopoly of the main political parties, failing to respect the standards of transparency, consultation, and inclusivity, especially with civil society organizations. The latest case was in 2020 when the Assembly approved within a short period of time, without an in-depth study and effective approach to inclusive consultation, the amendment of articles 64 and 68 of the Constitution, which led to the change of the electoral system and further amendments to the Electoral Code, where certain provisions were struck down and partially invalidated as unconstitutional by the Constitutional Court.[1] It is also worth stressing that while the country is heading toward the 2023 local elections, the Special Committee on Electoral Reeform has not enabled to date the realization of an electoral reform, even partial, before these elections.
In this context, based on the experience and specific focus of each organization joining this reaction in monitoring electoral processes, in the spirit of solidarity and mutual respect for the activity of our organizations, part of civil society, and with the goal being our modest contribution to empower and make aware citizens and encourage responsible actors to guarantee the holding of free and fair elections in keeping with relevant legal provisions, we present below a series of recommendations to competent institutions and political parties:
- Recommendations to the Assembly of the Republic of Albania
A solid, sustainable, and effective reform requires quality amendments not only to the Electoral Code, but also to the law on political parties. The entire regulatory framework for the creation, identification, functioning, and transparency of political parties, internal democracy and their rapport with the public, privileges and obligations, etc., would need to be part of this reform by the relevant committee established in the parliament.
In this framework, we recommend that the Special Committee on Electoral Reform proceed with taking measures to further review the legal framework to address unaddressed ODIHR and Venice Commission recommendations on a series of items that are unclear and incompatible.
Referring to the standards of the Venice Commission (Opinion no. 190/2002),[2] “The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election.”
However, in the circumstances where we are less than 4 months before the election of local government bodies, legal amendments may be necessary to fully depoliticize electoral administration bodies (CEAZ, VCC, VCG), to strengthen control and transparency of political party financing, envisage realistic deadlines for the verification of prohibitions of decriminalization legislation applicable tto candidates, to expand regulations and boundaries of expenses also for third parties (i.e. not just political parties), etc.
Amendments to the Electoral Code should be preceded by an open, inclusive, and fair consultation process.
Aside from the importance of guaranteeing and the implementation of the right to vote of Albanian citizens who live out of the country, we suggest a revision of the Electoral Code, in order for it to envisage fully and clearly the possibility and forms of realizing this right in practice. This obligation also arises in the context of the latest decision of the Constitutional Court (December 9, 2022), which found a violation of the constitutional right of emigrants to vote, in the previous elections for the Assembly, due to legal vacuum and the obligation of the Assembly to fill the legal vacuum one year from the entry into force of this decision.
Referring to guaranteeing equal access to elections, we recommend the undertaking of special measures and the improvement of legislation to ensure legal mechanisms (e.g., percentage of gender quota for public funds or specific division of public funds destined gender equality activities) to improve women’s participation and representation in electoral processes and to sanction failure to respect these provisions.
Based on the unprecedented incident of the holding and processing of citizens’ data for electoral purposes, through the canvassers’ system, we suggest that Chapter X “Criminal offenses affecting free elections and the democratic system of elections” of the Criminal Code, add a new provision, considering it a criminal offense when the state database with relevant data is used for electoral purposes by electoral subjects and envisage relevant criminal sanctions for it.
- Recommendations to the Central Election Commission
In order to guarantee legal certainty, effective administration of elections, and to avoid frequent revocations and changes of CEC decisions by its own leading bodies, it is recommended that a more collaborative mechanism is created between these bodies. We consider that measures should be taken for the review of the system of communication and process of discussion between the State Election Commissioner, the Regulatory Commission, and the Commission for Complaints and Sanctions.
It is advisable that the CEC approve a guide/commentary to explain the provisions of the Electoral Code and electoral administration, on the legal reading of provisions, deadlines, and technical elements deriving from the Code, about the manner of voting, the ballot, and other details that were seen as problematic and a source of institutional and political conflict also in these elections.
It is recommended to improve and strengthen the legal framework on electoral processes and political party financing to guarantee transparency and more effective control over illegal financing, misuse of state resources, and institutional pressure.
The misuse of state administrative resources in meetings or rallies organized by different representatives of electoral subjects is one of the systemic and and nevralgic problems of elections in our country. There have been cases when citizens played a proactive role in denouncing in the media and in their social networks the cases of electoral subjects and their candidates violating the provisions of electoral legislation in force. The CEC should conclude with a standard decision on the automatic review and addressing of the relevant denunciation, without the need for the request/denunciation to be addressed by an electoral subject. The investigation by the CEC should be realized within reasonable deadlines, before the election day, in order to contribute to increasing citizens’ trust in the CEC’s role.
In order to oversee the restrictions on the use of state resources in elections, it is necessary for the CEC to have the necessary human resources and capacities for monitoring in the field and conduct fast and complete administrative investigations into reported violations, avoiding delays and enabling as much as possible decision-making before election day. Restricting the appeal to the CCS for every decision-making/administrative sanction of the State Election Commissioner, addressing them as measures that may be appealed to the administrative court, may be an efficient practice to encourage reporting and avoid different interpretations/stances of sanctions of the Electoral Code within CEC bodies. The CEC should draft and publish a reporting form for public institutions in order to improve the process and the content of reporting activities. This should be accompanied by an awareness campaign with the involvement of institutions.
The CEC should expand the list of acts prohibited in an electoral campaign, including prohibiting the publication of electoral activities by the official online pages of state institutions. also, it should monitor the practices of tourist organizations, cultural and sports events, dissemination of aid and gifts, conducted during the electoral campaign by political officials or political candidates and subjects.
In this spirit, we recommend the revision and change of Decision no. 9/2020 of the Regulatory Commission at the CEC, on reporting activities prohibited for senior public officials, namely:
- Amending paragraph 1.1 of article 3 of Decision no. 9/2020 by removing the phrase “for which public funds not according to the approved budget plan have been recently or especially made available or transferred;”
- Including social media in the definition of “public media” avoiding any deficiency and incoherence in identifying and establishing what represents a “public activity;”
- Make a clarification of the administrative responsibility of officials that are subject to prohibited activities. We propose a clearer establishment in article 10 of separating institutional and personal responsibility in case of failure to report or promote activities prohibited for senior officials. We also consider that there needs to be a clearer definition of who are the “subjects under administrative responsibility” for whom sanctions in article 10, paragraph 1 of this decision are envisaged.
When there are evident violations of the Electoral Code, as appraised in the spirit of good electoral practices (case of canvassers, calls for involvement of independent and depoliticized structures in the campaign, intimidation, incidents, calls for conflict, etc.), the CEC should have a quick reaction or referral system to responsible institutions, an in keeping with its competences, impose when appropriate sanctions on electoral subjects that violate the Electoral Code.
The CEC should include in an in-depth investigation for the standards of decriminalization all of the candidates for the local elections, including those on whom there are denunciations by civil society, the media, electoral and public actors, etc. The process for verifying documentation and undertaking an in-depth investigation should be done within the fastest time possible after the announcement of lists, and not after the electoral process. For officials in the list of American sanctions, the CEC may announce investigations for in-depth investigations by the prosecution office and our justice bodies.
The CEC should publish the findings of the monitoring of records of commissioners and members of vote counting groups proposed by political parties in order to create the confidence that they are not the subject of any prohibition due to decriminalization, are not in conflict of interest with their employment, are not investigated or convicted for criminal electoral offenses, etc.
We recommend to the CEC to issue a by-law to standardize the documentation of political parties to be submitted to the CEC (court decision, list of the party presidency, list of local chairpersons, decision-making of the body that proposed the candidates, decisions on early verification of candidates (138/2015 and Authority on the Files). The CEC may emphasize by decision-making the obligation f subjects to fill out a much more detailed and accurate CV regarding the personal data of candidates than the current general model. The CEC should expand the documentation required for an electoral subject to register in the elections, proving with appropriate documentation that they have an accurate, verifiable address, with an office contract and members.
We particularly support the OSCE/ODIHR recommendation in its latest election monitoring report on Albania, that in order to increase the responsibility of political parties and the general transparency of the electoral process, those competing in elections publish before the election day their incomes and expenses for the campaign.
The declaration of incomes and expenses realized outside the official account of the electoral subject, from political foundations, party media, partner organizations, etc., created by the electoral subject itself should not be left out of CEC’s oversight.
In order to guarantee equal access and relevant evaluation, it is recommended to summarize data divided by gender on the dissemination of funding and financial reports by political parties.
The CEC should monitor also special television and media programs funded and dedicated to candidates and parties, outside the news editions, treating them as airtime and advertising for candidates. We recommend the creation of instructions for political parties to guarantee equal access for male and female candidates to free airtime in the media during electoral campaigns, according to article 80 of the Electoral Code.
The trend of invalid votes found in electoral processes has varied. CEC’s capacities should be strengthened to expand the bridges of communication, to guide and sensitize voters about the manner of voting, envisaging also outreach to the country’s rural areas, where voters have limited access to technology and audio-visual mediums.
Timely and clear informing of officials who are subject to prohibitions envisaged by the Electoral Code as well as the public remain essential. This process remains necessary to ensure awareness and appropriate confidence of electoral subjects and citizens to collaborate on cases of abuse.
We recommend to the CEC to monitor proactively the quality of training realized with electoral administration bodies’ commissioners (CEAZ, VCC, VCG), the involvement and interest expressed by appointed representatives of the electoral administration to be commissioners, and the proper timely planning of such training.
Furthermore, based on the use of mobile phones by voters, we suggest a broader interpretation by responsible electoral administration and investigative bodies of article 109, paragraph 2, of the Electoral Code, on the prohibition of holding a phone or any registration equipment inside the voting booth.
- Recommendations to the Justice System Bodies
Indicia and acccusations about vote buying and selling during the pre-election process in the latest elections, including parliamentary ones, were signaled in some municipalities of the country. The investigation of the prosecution office should be faster, objective, comprehensive, and complete.
It is unacceptable for the public that the repeated phenomenon of vote buying, and selling is investigated with a narrow approach, assigning blame on certain individuals who act as middlemen for vote buying. Such schemes should be investigated with special investigative techniques, proactively, and should enable the punishability of any representative of electoral subjects, without difference, in spite of the role and position in the structures of the electoral subject. That is the only way to move toward punishment of electoral crimes, effective prevention of vote buying and selling schemes, and therefore guarantee the integrity of the vote of every citizen.
We suggest to the General Prosecution Office and the Special Prosecution Office that, besides periodical releases having to do with the denunciation of criminal offenses in the field of elections, they also engage in publishing in a timely manner the main indicators resulting from the investigation of such cases. In order to overcome the problem of coordinating incomplete or contradictory statistics offered by the institutions of the criminal justice system, a joint effective registration system should be developed to include all steps of proceedings.
SPAK should have the necessary human resources to carry out timely and effective investigations of criminal offenses envisaged by articles 328 “Active corruption in elections” and 328/b “Passive corruption in elections” of the Criminal Code.
We suggest the increase of criminal sanctions for violations, such as abuse or misuse of state administrative resources, when this is a criminal offense according to article 328/a of the Criminal Code “Use of public function for political or electoral activity.”
To increase public’s trust in the electoral process overall and the effectiveness of punishment, there should be greater transparency by law enforcement and proceeding bodies to continue the investigation and adjudication of these criminal offenses.
- Recommendations for the CRIPDP
Based on an unprecedented database that circulated about the illegal spread of personal data for 910,000 citizens/voters in the previous parliamentary elections, it is important to bring to the attention of electoral subjects that they may not maintain personal and sensitive data of voters, without the voters’ approval and authorization.
We recommend to the Commissioner on the Right to Information and Personal Data Protection to exercise during this time, systematically, its oversight role, with professionalism and objectivity toward electoral subjects that collect and process data, based on law no. 9887 “On personal data protection” (amended) and the application of sanctions on subjects found to be in violation of the law.
- Recommendations to the Heads of Local Government Units
Both the practice of the previous elections and the monitoring of the parliamentary elections of April 25, 2021, proved that local government units in some VCs do not take preliminary measures so that on voting day, there is necessary facilitation for persons with disabilities who have difficulties in moving without certain equipment. We suggest to the chair sof these units to obtain relevant information about voters of this category and coordinate on time with the CEC to find alternative solutions to guarantee the right to vote without any discrimination and inclusively toward all voters.
Procesi i njoftimit të zgjedhësve në banesa të jetë sistematik deri në publikimin e listës përfundimtare të zgjedhësve; Kryetarët e njësive të qeverisjes vendore të njoftojnë në mënyrë provuese çdo 15 ditë KQZ-në, mbi realizimin e kësaj detyre.
- Recommendations for Political Parties
Based on the need to guarantee the integrity of candidates, in the circumstances of implementation of special legislation for decriminalization, we recommend to the relevant electoral subjects, with the possible consent of candidates part of the lists, outside the electoral period or immediately after their registration with the CEC, to seek in-depth verification from the General Prosecution Office, so that the latter has the necessary time available to carry out such verifications.
Based on the difficulties that the General Prosecution Office has encountered in verifying data on candidates, through the use of jurisdictional relations with abroad, ofr the purpose of respecting legal deadlines, we suggest to the electoral subjects themselves to take measures for preliminary verification of candidates, to guarantee the realization of a merit-based and fair competition.
Political Parties should promote candidates for mayors, elected inside the party through a fair competition and merit-based procedure, who present complete, realistic, transparent politica programs that represent the interest of citizens, to create confidence and expectations in fulfilling electoral processes.
Guaranteeing equal access to financing through:
- Creation of mechanisms to guarantee equal access of candidates (men and women, independently from their position on the list of candidates) to public funds during the electoral campaign.
- Creation of internal policies that guarantee gender equality and equal access to resources, especially during electoral campaigns.
With the goal of representing the political interests of voters by candidates who live in the relevant constituency, we suggest to electoral subjects to include in the lists of candidates for mayors, part of the Municipality, before running. The same recommendation applies to candidates for municipal counselors, who should reflect in the CEC’s online database their current place of residence.
In order to ensure functional and accountable democracy, the inclusion of different age groups in electoral processes remains a challenging goal. Political parties should create a more open and competitive environment for youth, sympathizers of electoral subjects, in order to increase the confidence of young voters and harmonize political programs with the expectations and visions of youth.
One aspect of special significance is guaranteeing accountability and transparency and the implementation of regulations and mechanisms for informing and monitoring that guarantee transparency and accountability in the management of political finances, as well as assuring and disseminating inclusive information on candidates and the public on the use and dissemination of public financing during electoral campaigns.
Partner signatory organizations (listed alphabetically):
- Academy of Political Studies (APS)
- Institute of Political Studies (IPS)
- Albanian Helsinki Committee (AHC)
- Civic Resistance
- Women’s Network “Equality in Decision-making”
[1] Decision no. 28/21 of the Constitutional Court to invalidate paragraph 3 of article 163 of the Electoral Code, as incompatible with the Constitution in envisaging the manner of calculation of votes receiving a number of preferential votes higher than the coefficient deriving from the division of the number of votes for the subject with the number of mandates won by the subject, according to article 162 of this Code. Decision no. 31/21 to invalidate, as incompatible with the Constitution, of the second sentence of paragraph 1 of artic le 162 of the Electoral Code, amended, in the part equating candidates proposed by the voteers to candidates proposed by political parties or coalition of political parties.
[2] “Guidelines on Elections” (CDL-AD (2002) 13)
