COMPARATIVE STUDY OF THE EUROPEAN ELECTORAL LEGISLATION

IN CONNECTION WITH NON-PARTISAN DOMESTIC OBSERVATION

Paving the way to obtain accreditation in Spain

Víctor Gratacós Chacón

The present study aims to analyse the regulation of domestic electoral observation in the

different OSCE member states, focusing on its most relevant examples so that the case

for including it in the Spanish democratic practice can subsequently be made. We seek to

provide an overview of the current configuration of domestic observation in Europe

through the use of documental databases to access the different reports produced by the

electoral observation missions from the Office for Democratic Institutions and Human

Rights (hereinafter “ODIHR”), along with each state-specific legislation, their respective

legislative amendments, and official consultations to their national electoral

administrations.

The main key points of our study show that:

• Domestic observation in Europe appeared right after the fall of the communist

regimes in the Eastern countries. However, the lack of interest in adopting this

practice by the Western European states portrays confusing and often

contradictory situations.

• The electoral observation mandate mainly stems from internationally adopted

commitments established in Documents, though their level of compliance

varies according to each state’s interpretation.

• Spanish law does not expressly forbid domestic election observers, but the

articles included in Organic Law 5/1985, of the General Electoral Regime

(hereinafter, “LOREG), tacitly exclude their physical presence in the polling

stations. The counting phase of the voting process, however, is open to the

public.

1. WHAT IS DOMESTIC OBSERVATION?

Citizen’s initiative to monitor electoral processes held in their country, in order to prevent

fraudulent acts from happening, is a relatively contemporary practice in the international

arena. Its origin can be found in the crystallization of NGOs devoted to electoral

observation in Southeast Asian countries. NAMFREL,1 in the Philippines, was the first

organization to adopt this practice.2

Generally speaking, it can be said that non-partisan domestic observation helps

citizens increase their degree of participation in the democratic processes of their

countries. It also gives them the opportunity of holding governments and other institutions

accountable for organizing elections in a transparent and effective way.3

Civil society’s organisations collect great amounts of information on the

development of electoral processes, and these findings are subsequently reflected in the

public analyses that assess the integrity of the whole democratic process and its level of

compliance with the national legislation and international standards and good practices

on democratic elections. Furthermore, they also help suggest state officials and other key

stakeholders on ways of improving this process, constituting this external observation,

and its subsequent reports and recommendations, an extremely useful tool to demonstrate

and define any kind of issue that may arise throughout the process.4

Domestic observation thus represents the citizen’s will to promote democracy and

respect to human rights through enhanced participation in the electoral processes of their

countries, serving as an additional tool to guarantee the transparency and legitimacy of

the elections.

1«National Citizens’ Movement for Free Elections»: http://www.namfrel.org.ph/v2/home/index1.htm (Access: 11 March 2019). 2 Leandro Nagore & Domenico Tuccinardi (2014). Citizen Election Observation, ACE Electoral Knowledge Network: http://aceproject.org/ace-en/focus/citizen-electoral-observation (Access: 14 March 2019). 3 Guide for Citizens Observers on Electoral Reform, Programme ‘Supporting Democracy - A Citizens’ Organisations Programme (including Domestic Observers Groups)’, Directorate General for Development and Cooperation - EuropeAid, Democracy, Governance, Human Rights and Gender Equality Unit, p.9 (http://media4democracy.eu/wp-content/uploads/2018/03/Guide-for-Citizen-Observers-on-Electoral-reform.pdf) 4Ibid, p.9

1.1. Appearance in Europe and regulatory framework

The emergence of electoral observation in Europe was largely due to the democratization

wave which contributed to the downfall of the different communist regimes of the Eastern

bloc, following the fall of the Berlin wall in 1989. The fragility of the emerging pluralist

democracies created a widely spread sense of need to protect the newly acquired

democratic values and its civil and political rights through the promotion of fair and

transparent electoral processes. The electoral observation stood as the best monitoring

tool to achieve these goals.……………

In this sense, in June 1990, the representatives of the CSCE (predecessor of

OSCE) member states met in Copenhagen and adopted a Document that, since then, has

been considered as the main reference framework that covers electoral observation within

the OSCE5: The Document of the Copenhagen Meeting of the Conference on the Human

Dimension of the CSCE (hereinafter, “Copenhagen Document”). The participant

countries that signed it, Spain among them, committed to fulfilling a series of

international obligations of political nature in terms of Human Rights, fundamental

freedoms and the development of societies based on plural democracies and the Rule of

Law.6 …………………………………………………

With regard to domestic observation, Paragraph 8 of the Copenhagen Document

specifically establishes that:

“The participating States consider that the presence of observers, both foreign and domestic, can

enhance the electoral process for States in which elections are taking place. They therefore invite

observers from any other CSCE participating States and any appropriate private institutions and

organizations who may wish to do so to observe the course of their national election proceedings, to

the extent permitted by law. They will also endeavour to facilitate similar access for election

proceedings held below the national level. Such observers will undertake not to interfere in the

electoral proceedings.”7

Likewise, Paragraph 8 also sets the participant states’ repeated practice of

receiving electoral assessment missions from the OSCE’s ODIHR. Founded in 1992,

ODIHR is Europe’s leading agency in the field of electoral observation. Year after year,

it coordinates and organizes the deployment of thousands of observers that assess whether

elections held in the OSCE member states are being conducted in line with the OSCE

5 Dirección General de Política Exterior y Asuntos Multilaterales, Globales y de Seguridad, Oficina de Derechos Humanos (2014). Manual Práctico de Observación Electoral, p.18 6Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (1990), Preamble. 7Ibid, paragraph 8.

commitments, other international standards and obligations for democratic elections, and

also to the national legislation.8

ODIHR’s electoral observation mandate was reinforced by the 1990 Paris Charter

for a New Europe, the Document of the Fourth Meeting of the CSCE Council of Ministers

held in Rome in 1993, the Budapest Summit Document in 1994, the Istanbul Summit

Document in 1999, and the Final Document of the Fourteenth Meeting of the Ministerial

Council in Brussels in 2006.9

However, to date, a large number of OSCE member states have still not granted

full legal status to the non-partisan domestic observer role within their national law,

despite the many reports issued by ODHIR’s Electoral Assessment Missions, available in

the documental database of the OSCE,10 which expressly promote and recommend it, and

even despite having agreed, according to Paragraph 25 of the Istanbul Document 1999,

“to follow up promptly the ODIHR’s election assessment and recommendations.”11

The political character of the commitments arising from the 1990 Copenhagen

Document and other similar documents concerning electoral issues in the OSCE sphere,

however, has limited the effectiveness of some of these agreements, which in return, as

we will see further on, has had an impact on the different electoral frameworks of the

member states in a dissimilar fashion.

In this sense, the 2002 Venice Commission’s Code of Good Practice in Electoral

Matters spelt out, in a first group, the so-called “five basic principles of the European

electoral tradition”, which are: universal suffrage, equal vote, free vote, secret vote, and

direct suffrage; and, in a second group, the “conditions to implement those principles.”

The purpose of this code was to compile in an official document all the principles

to be observed, the rules to be followed and, in some cases, the practices that must be

avoided or prohibited when holding and even observing elections, if they are to be

considered free and fair, and, therefore, legitimate. Taking all this into account,

8 Text usually set in the general information about the OIDDH/OSCE, included in the last page of the Reports of the different Electoral Assessment Missions. 9 OSCE Office for Democratic Institutions and Human Rights (2010). Election Observation Handbook, 6th Edition 10“Documents library, Resources (OSCE)” https://www.osce.org/resources/documents?filters=im_taxonomy_vid_3:(120) (Access: March 18th 2019). 11 Document of the 1999 Istanbul Summit, paragraph 25.

conclusions on whether a specific State operates correctly regarding the democratic

transfer of political power could be drawn.12

The electoral observation practice appears within Condition no. 3, “Procedural

Safeguards”, which establishes that:

a) Both national and international observers should have the chance to participate in the

observation of the elections in the broadest possible manner.

b) Observation should not be limited to the actual polling day, but includes the registration period

for candidates and, if needed, of voters, as well as the election campaign. It should allow to

determine whether there have been any irregularities before, during, or after the election. In all

cases, it should be possible during the vote counting.

c) The law must be very clear regarding what sites observers are not entitled to visit.

d) Observation must be based on the respect by authorities for their claim to neutrality.”13

Even though these «Good practices» do not have an actual binding character,

together with other similar documents14, they have contributed to the establishment of

electoral observation as a systematic method of safeguarding and monitoring of the

electoral process, and they have evolved from a perspective solely focused on the election

day, to a broad, holistic and global perspective of the whole electoral cycle.15

2. CURRENT FRAMEWORK IN EUROPE

The current regulation regarding domestic observation in the OSCE member states is, as

discussed earlier in this report, substantially uneven. However, although at first it does

not seem to follow any established pattern based on legal traditions, certain geographical

boundaries can be outlined to define some regions that share similar features in the

organization of their electoral processes.

12 Georges Clerfayt (2004). The European electoral heritage and the Code of Good Practice in Electoral Matters. Science and technique of democracy, No. 39, p.24 13 Code of Good Practice in Electoral Matters (2002). Condition 3.2 14 A major milestone in acknowledging the relevance of domestic observation was the 2012 publication of the “Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organization sand Code of Conduct for Non-Partisan Citizen Election Observers and Monitors”, whose preamble establishes that the “Non-partisan citizen election observers and monitors can be considered as specialized human rights defenders focused on civil and political rights, which are central to achieving genuine elections.” 15 Leandro Nagore & Domenico Tuccinardi (2014). Citizen Election Observation, ACE Electoral Knowledge Network: http://aceproject.org/ace-en/focus/citizen-electoral-observation) (Access: March 15th 2019).

Figure 1

Source: own elaboration

We may note that, within countries of Western Europe, the practice of domestic

observation has only been expressly recognized in British law and the sui generis Swiss

cantonal legislation. The remaining countries range from those with legal restrictions

(Austria, Ireland, and Belgium, for example), those that include the public counting of

votes (like Spain, France and Italy), and the case of Germany and the Netherlands, where

the public configuration of various stages of the electoral process itself allows voters to

potentially conduct observation activities analogous to those of the domestic observer.

Among the democracies in the Northern countries we can find public counting in

Iceland and Denmark, the “open” or public electoral procedures of Sweden, and, as the

sole examples of the express inclusion of domestic observers in their national legislation,

Norway and Finland. ………….……………………………………………

Thus, on the whole, and with some specific exceptions, we can see that a greater

and older electoral tradition fosters a widespread sense of confidence among the citizens

in the electoral procedure (and, for that matter, in the institutions that guarantee the

process), which has led lawmakers to take no further interest in including domestic

observation as part of the national legislation.

Table 1

Countries that allow the public counting of votes or that implicitly allow

observation by other means

Source: own elaboration

In Eastern Europe, the new democracies that came into being as a result of the fall of the

communist regimes towards the end of the 20th Century also brought, as a consequence,

a greater commitment to the promotion of democratic values, the political participation

of the citizens, and safeguarding mechanisms of elections, including domestic

observation.

Except Hungary, the Czech Republic, the Russian Federation, and, in a certain

way, Latvia16, all emerging democracies in Eastern Europe have explicitly included the

role of the domestic observer as a guarantee of a fair and transparent electoral process,

even though in some of these countries, namely Slovakia and Byelorussia, the ODIHR

observation missions identified flaws in their regulatory provisions.

Likewise, in the Balkan peninsula, the traumatic legacy left by the Yugoslavian

wars of the 1990s resulted in greater involvement of the citizens in the organization of

elections, and, thus, in the strengthening of the observation practice. Electoral observation

is also envisaged by the legislation of all countries in the region, except Greece, Turkey

and Serbia, although in the latter it is foreseen by administrative regulation.

16 Not explicitly included, but the Central Electoral Commission made accreditations available to citizens who wished to observe elections to Parliament.

Table 2

Countries in which domestic observation is expressly provided for

Source: own elaboration

Given the lack of similar patterns or practices based on legal traditions, we chose

to differentiate three geographical areas that share certain characteristics in the

development of electoral processes.

Figure 2

Source: own elaboration

1) First of all, we find the Eastern European area as the one that, as previously

discussed, arose from the collapse of the communist bloc, and whose democracies

have a shorter historical background than the other half of the continent. This is

the traditional area where Western European countries send and organize election

observation missions.

2) The second area is the North-western zone, which includes the United Kingdom,

Germany, the Netherlands and the Nordic countries (except Denmark and

Iceland). They all set the example of the standard practice of electoral

observation, either because of its express inclusion in their legal codes or due to

the level of transparency and openness of their electoral processes.

3) Finally, the Mediterranean area, which includes Turkey, is where attendance to

the public counting of votes is usually allowed, but where recommendations from

ODIHR are consistently ignored.

2.1. Case studies of inclusion of the domestic observer role

Despite the different ways that all these states use to protect their citizen’s right to observe

the electoral processes as non-partisan observers, from a substantive point of view, the

final purpose sought by all of them is no other than to guarantee the necessary

transparency and citizen control over the electoral process, and over state authorities that

prepare and carry out the elections, to eliminate, or, at least significantly reduce possible

abuses and irregularities. ……………………………………………………….

However, despite sharing the goals that follow the spirit of Paragraph 8 in the

1990 Copenhagen Document and the corresponding recommendations made by ODHIR,

following the Electoral Assessment Missions reports drafted in the different OSCE

member states, the reasons that drove their respective legislative procedures to introduce

this practice were not necessarily homogeneous.

2.1.1. Republic of Poland………

In this sense, Poland started a legislative procedure17 to amend its 2011 Electoral Code18

(“Kodeks Wyborczy”) to grant the right to appoint a delegate as a social observer

(“Obserwatorzy społeczni”) to all registered associations and foundations whose goals,

as reflected in their statutes, showed an interest for democracy, civil rights and the

development of the civil society19. This was seen, in good measure, as a response to the

electoral scandal occurred in the 2014 local elections. ……...

The main opposition party, so-called Law and Justice Party20, reported

irregularities and called for the introduction of additional guarantee measures in order to

curb as much as possible electoral fraud. Even though the Government coalition which

back then held the parliamentary majority at the Sejm turned down their proposal, in 2015

Law and Justice managed to win the majority in the Parliament and the Presidency. Thus,

it can be said that the initiative to introduce domestic observation in the country did not

follow the recommendations of the ODIHR, but rather was made possible thanks to the

17 Project n. 2001 (http://www.sejm.gov.pl/Sejm8.nsf/PrzebiegProc.xsp?nr=2001) (Access: 8 April 2019). 18 Under the «Law 11/2018, abut the amendment of certain laws in order to increase the citizen’s participation in the process of selecting, operating and monitoring certain public institutions » (originally, «Ustawa z dnia 11 stycznia 2018 r. o zmianie niektórych organów publicznych») 19 Article 103c §1, 2011 Electoral Code 20«Prawo i Sprawiedliwość»

country’s political climate, on one hand, and the activism by the Polish civil society,21 on

the other.

It is interesting to mention the different opinions expressed by the “Bureau of

Research of the Sejm”22 about this legislative procedure, notably Dr Marcin Rulka’s

opinion about the part that amends the provisions in the Electoral Code concerning

European electoral rules.23

In section 9 of the report, Mr Rulka mentions the introduction of social

observation institutions and establishes that the proposal implements, on the one hand,

the recommendation in paragraph 87 of the 2002 Venice Declaration —according to

which three different kinds of observers must be present in all elections (partisan national

observers, non-partisan national observers and international observers) in order to

guarantee their reliability—; and, on the other, priority recommendation n. 5 made by the

latest OSCE Election Assessment Report on the last Polish parliamentary elections, which

stated that "the Electoral Code must ensure full access of non-partisan domestic observers

to all stages of the electoral process, in line with the OSCE commitments and other

international commitments."24

The first time that Polish civil society was able to send non-partisan national

observers to polling stations was the 2018 local government elections, and although the

amendments that introduced this practice into Polish national legislation are somewhat

recent, it is not an isolated case within the practice of the OSCE states that have finally

decided to implement it.

In this regard, it must be noted that the two paradigmatic cases of inclusion of

domestic observation in consolidated and highly rights-based European democracies,

Norway and Finland, carried out legislative procedures to amend their electoral

codifications in 2009 and 2013. …………

21 Mainly through foundations and associations promoting democratic values and practices such as the Stefan Batory Foundation (http://www.batory.org.pl/) 22 Entity in charge of offering, among other services, academic advice over the length of a legislative process (http://www.bas.sejm.gov.pl/) 23Ekspertyza na temat zgodności projektu ustawy o zmianienie których ustaw w celu zwiększenia udziału obywateli w procesie wybierania, funkcjonowania i kontrolowania niektórych organów publicznych (druknr 2001) – w części zmieniającej przepisy kodeksu wyborczego – z europejskimis tandardami wyborczymi”, page 8 (http://www.sejm.gov.pl/Sejm8.nsf/opinieBAS.xsp?nr=2001) (Access: 12 April 2019). 24 Republic of Poland, Parliamentary Elections (25 October 2015), OSCE/ODIHR Election Assessment Mission Report, p. 19 (https://www.osce.org/odihr/elections/poland/217961?download=true) (Access: 11 April 2019).

2.1.2. Republic of Finland

In the case of the Republic of Finland, certain provisions regarding non-partisan electoral

observation already existed, specifically in article 184 of the Electoral Law 714/1998

(Vaalilaki), which regulated the holding of elections throughout the Finnish territory

before the 2013 amendment. However, this article only included the possibility of

attending electoral meetings upon authorizations by the Ministry of Justice.

In the explanatory memorandum of the “Proposal from the Government to

Parliament to amend the Electoral Law”,25 the executive proposes the addition of a new

paragraph to said article 184, which would establish the legal right of domestic and

foreign observers to be present when the electoral officials perform their tasks. The

proposal was based on the latest Final Report of the OSCE/ODIHR Electoral Assessment

Mission to the parliamentary elections, which recommended, among other measures, the

adoption of regulatory provisions that secured the right of domestic and international

observers to monitor all stages of the electoral process, in order to promote the procedural

guarantees. Likewise, the creation of an official accreditation procedure by the Ministry

of Justice was suggested.26

The proposal, finally approved with no opposition in Parliament,27 was established

in the Law 496/2013, of amends to the Electoral Law,28 and represents an exemplary

case of adoption of OSCE/ODHIR recommendations in regards of electoral observation,

especially if compared to the Polish case. Whereas in Poland a favourable situation was

created as a consequence of suspected flaws in the local elections, the reasons that took

Finnish lawmakers to include the electoral observation practice in the national legislation

was no other than meeting OSCE/ODIHR recommendations, notwithstanding the high

level of trust in the electoral processes among the Finnish population.

25 Report HE 27/2013 vp (https://www.finlex.fi/fi/esitykset/he/2013/20130027) (Access: 15 April 2019). 26 Republic of Finland, Parliamentary Elections (17 April 2011), OSCE/ODIHR Election Assessment Mission Report, p. 6 (https://www.osce.org/odihr/81121?download=true) (Access: 17 April 2019). 27 Subject HE 27/2013 (https://www.eduskunta.fi/FI/Vaski/sivut/trip.aspx?triptype=ValtiopaivaAsiat&docid=he+27/2013#identification) 28Lakivaalilainmuuttamisesta 496/2013 (https://www.finlex.fi/fi/laki/alkup/2013/20130496)

2.1.3. Kingdom of Norway

About a decade ago, the Norwegian lawmakers introduced the non-partisan citizen’s

observation in the “Law 57/2002 of elections to Storting, town halls and city councils”,

popularly known as Valgloven29, in which there had been no previous mention to electoral

observation.

Through the “Law 26/2009, of amendments to Electoral Law and to the Local

Government Law (early-voting, electoral observation, etc.)”30, whose denomination

explicitly includes this concept, a whole framework which would allow and regulate

electoral observation, both domestic and international, was set up in a legal system that

hitherto didn’t make any provision in this regard.

The main arguments in which the Ministry proposal was based were, on one hand,

the importance of holding transparent elections, open to anyone interested in observing

them, both nationally and internationally and, on the other hand, to make clear that

Norway was subject to these international commitments through treaties and other

international agreements.31

In this respect, emphasis should be made on the “Recommendation no. 61 of the

Standing Committee on Scrutiny and Constitutional Affairs”32 prepared during the

legislative process previous to the law’s submission to the House of Representatives for

discussion33. All relevant aspects to be amended are discussed in a detailed manner, and

in this sense, electoral observation is included in section 3.1.4 of the text.

The report drafted by the Committee, presided over by Mr L. Solholm, states that

the absence of provisions on electoral observation in the national legislation had blocked,

as a consequence, the Ministry’s ability to authorize or accredit any kind of observers,

making it impossible to enable election observation and to order the municipalities to

accept it.34

29Lov om valg til Stortinget, fylkesting og kommunestyrer”: https://lovdata.no/dokument/NL/lov/2002-06-28-57 (Access: 22 April 2019). 30Lov om endringar i valgloven og kommuneloven (tidlegrøyster, valobservasjon mv.) (https://lovdata.no/dokument/LTI/lov/2009-05-08-26) 31 S. Lian (personal communication, 12 April, 2019) 32Innst. O. nr. 61 (2008–2009), Innstilling til Odelstinget fra kontroll- og konstitusjons komiteen Ot.prp. nr. 32 (2008–2009), Innstilling frakontroll- og konstitusjons komiteen om lov om endringar i valgloven og kommuneloven (tidlegrøyster, valobservasjonmv.)”: https://www.stortinget.no/globalassets/pdf/innstillinger/odelstinget/2008-2009/inno-200809-061.pdf (Access: 23 April 2019). 33Ot.prp. nr. 32 (2008-2009)(https://www.stortinget.no/nn/Saker-og-publikasjonar/Saker/Sak/?p=42377) (Access: 23 April 2019). 34Innst. O. nr. 61 (2008–2009), p.10

However, the document also recalls that, from the perspective of the Ministry that

made the proposal, there is no doubt that, through its commitments with the OSCE and

the European Council, Norway is bound to enable the aforementioned electoral

observation. The statement is completed further on, when it mentions that the electoral

observation international standards, such as the OSCE 1990 Copenhagen Document

among others, are commitments that Norway approved and, thus, is bound to respect,

because:

“These democratic principles for the implementation of elections, such as the right to free and

direct domestic elections, are essential to all conventions. It can be said that international

conventions, as well as the documents regulating the observation of elections, follow up these

principles. After all, election observation consists in controlling that these principles are

observed.”35

These legislative amendments were taken into account in the Final Report of the

OSCE/ODIHR Electoral Assessment Mission to the 2017 parliamentary elections in

Norway, in which, despite the high number of international observers that attended,

accompanied by several Norwegian organizations,36 “national electors have little interest

or need to observe the elections,”37 largely due to their “complete trust in the correctness

of the electoral process, from which they emphasize the transparency and trustworthiness

of all aspects of the electoral operation.”38 ……………………………

Despite the slight absence of will to participate in the observation of elections

among the Norwegian civil society –which could be seen as an expression of said

confidence in the electoral process–, the electoral administration, led by the Ministry of

Local Administration and Regional Development through the so-called “Electoral

Directory” (Valgdirektoratet), includes in its website information on electoral observation

available to the public, stating that:

“The purpose of election observation is to determine whether the elections and the electoral

process follow the national and international legal standards and other universal principles

concerning democratic elections (…), the election observation strengthens accountability

and transparence, and, thus, it increases trust in the electoral process, both nationally and

internationally.”39

35Ibid 36https://www.regjeringen.no/no/aktuelt/rekordmange-valgobservatorer-til-norge/id2570106/?expand=factbox2570141 37 Norway, Parliamentary Elections (September 11, 2017), OSCE/ODIHR Election Assessment Mission Report, page 4 38Ibid, p.10 39https://valg.no/en/about-the-election/about-the-election/election-observation/

In short, this illustrates the Nordic country’s political culture, which is consistent with

the commitments adopted at an international level, despite the apparent “superfluity” of

integrating a democratic guarantee practice to an electoral process that is already trusted

by most of the electorate.

2.2. Case studies of non-inclusion of the domestic observer role in characteristically

“open” processes

Next, we find two paradigmatic cases within the northern European countries: Sweden

and Germany. The shared characteristic of these two States resides on the fact that, in

addition to not expressly foreseeing the domestic observer in their national legislation,

the level of “openness” and high transparency of their respective electoral processes

creates a situation where each voter coming to its polling station is a potential observer.,

This implies that the voter is free to attend, without requesting permission or

official accreditation, the essential phases of the process. Thus, given that the role of the

domestic observer is tacitly recognized by the electoral administration, there is no legal

provision that regulates the defining elements of the observer role, the regulation of the

accreditation procedure or the prerogatives that are recognized.

2.2.1. Kingdom of Sweden

The 2010 OSCE/ODIHR Needs Assessment Mission (NAM) report on the occasion of

the Swedish Parliament40 (or Riksdag) general election stated that this institution had not

“previously observed or evaluated elections in Sweden”. Thus, the recommendations

ODIHR date back to this report and, subsequently, to the report of the Needs Assessment

Mission together with the Final Report of the OSCE/ODIHR for the 2018 General

Elections.

In all of them, the remark that the Swedish legal framework does not contain

explicit provisions for the access of domestic observers to the electoral process is

reiterated, which does not fulfil the Swedish adopted commitments in the OSCE41. It is

argued that as a consequence of this lack of legal basis, full access by observers to all

40 Sweden, General Elections (19 September 2010), OSCE/ODIHR Needs Assessment Mission Report, page 1. (Access: 14 Octubre 2019). 41 Idem; Sweden, General Elections (9 September 2018), OSCE/ODIHR Needs Assessment Mission Report, page 8. (Access: 14 Octubre 2019).

phases of the process is not guaranteed, and thus the inclusion of express legal provisions

is recommended to guarantee this access and to specify their rights and responsibilities42.

Although these recommendations are very similar to those that are also formulated

for other States that have not included the role of the domestic observer in their national

law either, the configuration of the electoral process of the Scandinavian country is much

more open, giving the public “the right to attend and see what happens at the polling

station”, and moreover," the right to be present where the preliminary vote count is carried

out and then the final count” 43.

The National Elections Office (“Valmyndigheten”) states in its website44, under

subsection «Publicity and electoral observation», that both the reception of the vote

(“röstmottagning”) and its counting (“rösträkning”) are public, provided they are no

alterations, detailing that such advertising will apply to:

“1. The receipt of votes at polling stations for early voting.

2. The receipt of votes at polling stations on election day.

3. The counting of votes at polling stations on election night.

4. Preliminary Election Committee counts from Wednesday through Thursday after

Election Day.

5. The counting of votes at the county administrative board.”.

From the legal point of view, this publicity is expressly provided for in Section 1

of Chapter 1145, Chapter 1246 and Chapter 1347 of the Swedish electoral law (Vallag

2005:837). It should be noted that the previous electoral law (Vallag 1997:157) provided,

in a general way, that “all reception of votes shall be public”; however, this precept was

not transferred to the new 2005 law together with the rest of the provisions referring to

the publicity of the process.

42 Ibid. 43 National Elections Office (Valmyndigheten), (personal communication, April 30th 2019). 44“Offentlighet och valobservation”: https://www.val.se/val-och-folkomrostningar/det-svenska-valsystemet/offentlighet-och-valobservation.html (Access: October 21st 2019). 45 “Rösträkningen är offentlig och skall genomföras utan avbrott” ("The counting of the votes is public and will be carried out without delay"). 46 “På onsdagen efter valdagen ska valnämnden sammanträda för att granska och räkna de röster som inte räknats i vallokalerna. Sammanträdet är offentligt. Resultatet av nämndens rösträkning är preliminärt” ("On the Wednesday following election day, the election committee will meet to review and count the votes that have not been counted at the polling stations. This meeting is public. The result of the committee's vote count is preliminary"). 47“Länsstyrelsen skall göra den slutliga rösträkningen. Förrättningen är offentlig och skall göras utan dröjsmål” ("The county administrative board will conduct the final vote count. The procedure shall be public and shall take place without delay").

The explanation can be found in the legal comments of the then “Law

2004/05:163”48, where the following was stated:

“That the preliminary vote count at the polling stations and the so-called Wednesday

count are public is of fundamental importance for the legitimacy of the electoral

system and should, therefore, be explicitly expressed in the electoral law. On the other

hand, it is inherent that the reception of votes at the polling stations is always public,

so no specific provision is required, which is also the conclusion of the commission.

However, it is not obvious that the reception of votes at polling stations can always

be done in a way that can be designated as public. This applies mainly when it occurs

in detention centres and prisons, where the general public, for obvious reasons, cannot

gain access, and also for other types of health care facilities more or less extensive

restrictions on the right of access may apply. Any general rule on the reception of

public votes in polling stations is almost impossible to maintain, thus the provision in

Chapter 9 § 1 of the current electoral law that states that all reception of votes must

be public will not be transferred to the new law”.49

It is very interesting to note that, for the Swedish legislator, in addition to the vote

counting, its reception in the polling station premises is inherently public, which implies

the unnecessary need to make it explicit in the law. Although it gets rid of the previous

clause that included all reception of the vote as public, it does not embark either in the

task of making explicit where this right of access can be exercised or not. Therefore, the

publicity of the vote reception remains as a sort of implicit numerus apertus that is

sustained in the idea that the citizens, on the one hand, do not question the public nature

of the act in the polling stations and that, on the other hand, it is obvious that in the rest

of the cases there are or can be restrictions that would condition such access.

Following the 2018 parliamentary elections, the "Valmydigheten" issued an

assessment summary50 of the elections where it noted that while "elections in Sweden are

a public matter, and the public, both Swedish and foreign, are free to witness the receipt

of the vote and the counting without requiring accreditation", it recommended the

amendment of the election law to introduce regulations on election observation and

accreditation procedures, citing OSCE/ODIHR recommendations in this regard.

In any case, the ODIHR itself noted in its 2018 Final report the confidence of the

interlocutors in the system, "which is considered open and transparent"51. It reiterates,

48“Regeringens proposition 2004/05:163”: https://www.regeringen.se/49bb65/contentassets/998b23b9a0fd45b3b13d00518a050936/ny-vallag (Access: 22 Octubre 2019). 49 Ibid, p.128-129. 50“Erfarenheter från valen 2018”: https://www.val.se/download/18.3acea2511672bd8769229f0/1550219505460/Erfarenheter-valen-2018.pdf (Access: 25 Octubre 2019). 51 Sweden, General Elections (9 September 2018), ODIHR Election Expert Team Final Report, page 2.

however, its recommendation at the end of the text (and in the first position) to provide

legal cover for the role of the domestic observer in accordance with the Copenhagen

commitments.

Although there are no national civil society organisations observing the elections

in Sweden, the Swedish International Liberal Centre (SILC) is the institution which

operates closest to the field of domestic observation in Sweden. This organisation invites

members of foreign partner organisations to carry out activities as close as possible to

domestic election observation missions, with the aim of "alerting the authorities and the

public to possible fraud and deficiencies in the electoral system and suggesting measures

to deal with these deficiencies" and, in the long term, "improving the electoral system

and, therefore, citizens' confidence in democracy", by issuing observations and

recommendations on the development of the 201452 and 201853 parliamentary elections.

2.2.2. Federal Republic of Germany

Similarly to the previous case, the German electoral legislation does not expressly

contemplate the role of the domestic observer in its articles, although other precepts

provide the system with such a level of publicity that any person interested in observing

the elections can do so without the need for accreditation.

These provisions can be found in the Federal Election Act (Bundeswahlgesetz or

BWG), section 1054 and section 3155, and the Federal Election Regulation

(Bundeswahlordnung or BWO), section 5456. Also, within Article 38.1 of the German

Constitution (Grundgesetz or GG), which sets out the five basic principles of electoral

52“OBSERVATION MISSION, The Swedish Parliamentary Elections September 14, 2014 Recommendations and observations”: http://silc.se/wp-content/uploads/2015/05/Final-Report-of-election-observation-mission-14-September-2014.pdf 53“OBSERVATION MISSION, The Swedish General Elections September 9, 2018 Observations and Recommendations”: http://silc.se/wp-content/uploads/2018/10/Final-report-2018-w-annex.pdf 54 “Die Wahlausschüsse und Wahlvorstände verhandeln, beraten und entscheiden in öffentlicher Sitzung” ("Election committees and election boards negotiate, deliberate and decide in public session"). 55 “§ 31 Öffentlichkeit der Wahlhandlung: Die Wahlhandlung ist öffentlich. Der Wahlvorstand kann Personen, die die Ordnung und Ruhe stören, aus dem Wahlraum verweisen” ("§ 31 Publicity of the vote: The vote is public. The election board may remove persons who disturb the order and silence of the voting room"). 56 “§ 54 Öffentlichkeit: Während der Wahlhandlung sowie der Ermittlung und Feststellung des Wahlergebnisses hat jedermann zum Wahlraum Zutritt, soweit das ohne Störung des Wahlgeschäfts möglich ist” ("§ 54 Publicity: During the act of voting, as well as the counting and determination of the election result, everyone has access to the polling room, as far as possible, without disturbing the proceedings").

law (general, direct, free, equal and secret), it is usually included the principle that

elections must be public as another recognized principle of the electoral law.

The principle of public elections requires that voting be carried out under public

scrutiny, so the public must have the opportunity to monitor the essential parts of the

electoral process (except the act of voting itself, which is secret) and the way in which

the result is determined. This is guaranteed, for example, by the right to be present at the

polling station during voting and while the counting of the result is carried out and

subsequently established by the electoral board57.

As stated in the Federal Election Office's election glossary, it is not necessary to

register as an election observer, since all persons (including those who "do not have the

right to vote") have the right of access and may stay at the polling stations premises and

observe from the time the election board meets on the morning of election day until the

result of the election is finally announced58.

This situation was documented in the Needs Assessment Mission report and the

final report of the OSCE/ODIHR on the occasion of the 2009 Bundestag elections, the

first concerning the elections in Germany and also the most detailed. In general, the NAM

noted a "high level of confidence in the overall integrity of the process" and

acknowledged the existence of legal provisions emphasizing the public nature of the

election process59. Representatives of the Ministry of the Interior stated that these legal

provisions, by making the system more transparent, did not exclude the possibility of

observation by interested parties, including foreigners, although the mission itself recalls

that not containing explicit legal provisions for the presence of observers is not in line

with paragraph 8 of the Copenhagen Document60.

Furthermore, the final report cautioned that neither the BWG nor the BWO

contains definitions of the term "public", while section 10 requires officials to "exercise

discretion with respect to the information to which they gain access as a result of their

57“Wahlrechtsgrundsätze”: https://www.bundeswahlleiter.de/en/service/glossar/w/wahlrechtsgrundsaetze.html (Access: November 1st 2019). 58“Wahlbeobachtung”: https://www.bundeswahlleiter.de/en/service/glossar/w/wahlbeobachtung.html (Access: November 1st 2019) 59 Federal Republic of Germany, Elections to the Federal Parliament (Bundestag), 27 September 2009, OSCE/ODIHR Needs Assessment Mission Report, page 2. (Access: November 5th 2019). 60 Ibid, page 6.

official duties", concluding that these combined provisions may create confusion as to

what information about the process may or may not be disclosed61.

As far as legal pronouncements are concerned, as mentioned in the same

paragraph, the public nature of the electoral process has been underlined by the German

Constitutional Court in a decision on electronic voting62 where it was established that the

principle of publicity of elections emanating from Article 38 GG "requires that all

essential stages in elections be subject to public scrutiny unless other constitutional

interests justify an exception".

Among other particularly relevant pronouncements, we can highlight the

following:

Paragraph no.107: "The public nature of elections is a fundamental precondition for

democratic political will-formation. It ensures the correctness and verifiability of the

election events, and hence creates a major precondition for the well-founded trust of

the citizen in the correct operation of the elections. The state form of parliamentary

democracy, in which the rule of the people is mediated by elections, in other words is

not directly exercised, demands that the act of transferring state responsibility to

parliamentarians is subject to special public monitoring (...)."

Paragraph no.109: "In a representative democracy, the elections of the people’s

representation constitute the fundamental act of legitimisation (...). Only by the

possibility of monitoring whether the elections comply with the constitutional

election principles is it possible to ensure that the delegation of state power to the

people’s representation, which forms the first and most important part of the

uninterrupted legitimisation chain of the people to the bodies and office-holders

entrusted with state tasks, does not suffer from a shortcoming. The democratic

legitimacy of the elections demands that the election events be controllable so that

manipulation can be ruled out or corrected and unjustified suspicion can be refuted.

This is the only way to facilitate the well-founded trust of the sovereign in the correct

formation of the representative body. The obligation incumbent on the legislature and

on the executive to ensure that the election procedure is designed constitutionally and

is implemented properly is not sufficient by itself to impart the necessary legitimacy.

Only if the electorate can reliably convince itself of the lawfulness of the transfer act,

if the elections are therefore implemented “before the eyes of the public” is it possible

to guarantee the trust of the sovereign in Parliament being composed in a manner

corresponding to the will of the voters that is necessary for the functioning of

democracy and the democratic legitimacy of state decisions."

Paragraph no.111: "The public nature of the elections is also anchored in the principle

of the rule of law. The public nature of the state’s exercise of power, which is based

on the rule of law, serves its transparency and controllability. It is contingent on the

61 Federal Republic of Germany, Elections to the Federal Parliament (Bundestag), 27 September 2009, OSCE/ODIHR Election Assessment Mission Report, page 22. (Access: November 5th 2019). 62“BUNDESVERFASSUNGSGERICHT - 2 BvC 3/07 - 2 BvC 4/07 –”: https://www.bundesverfassungsgericht.de/e/cs20090303_2bvc000307en.html (Access: November 8th 2019).

citizen being able to perceive acts of the state bodies. This also applies as to the

activities of the election bodies"

It is very interesting to analyse the reasoning of the German Constitutional Court,

which without mentioning the concept of "election observer", raises the issue of publicity

of the electoral process to the highest standards of democratic legitimacy and exercise of

popular sovereignty. Domestic observation evolves from being a "tool of additional

guarantee" to being the means of guarantee per se by which citizens are convinced of the

legality and legitimacy of the process of transfer of power to political representatives.

That is why it is established that "the obligation incumbent upon the legislative and

executive powers to ensure that the electoral procedure is constitutionally designed and

properly implemented is not sufficient in itself to impart the necessary legitimacy".

Anecdotally, this model of publicity is linked to German electoral practice in such

a way that even the communist state of the German Democratic Republic (also known as

"East Germany" or GDR) provided in its "Law on Elections to the People's Chamber of

the GDR" for the publicity of the voting act (Wahlhandlung) and the counting of the votes

in the electoral premises.

As a result of all this, and from a strictly logical point of view, it seems that it is

unnecessary for the legislator to expressly regulate the role of the domestic observer,

although there is some tendency on the part of the authorities to treat these matters as

secret, clarifications made by the law may help to clear up future confusion63. Also,

although the interest of German citizens in organising themselves to observe their

elections is low, given the high level of trust in the process (there are only examples of

actions planned for a single moment), opening up the possibility for citizens to observe

with better guarantees is important, especially to clear up any doubts and discredit

conspiracy theories64.

The OSCE/ODIHR, for its part, in its latest reports in 2017, ceases to mention the

status of domestic observation, limiting itself to acknowledging the publicity expressly

recognised by law for the process, while warning of the lack of specific provisions for the

presence of international election observers, also stemming from the Copenhagen

commitments.

63 M. Fehndrich, (personal communication, December 10th 2019). 64 Ibidem.

2.3. Other relevant cases

2.3.1. Republic of Estonia

Since it was enacted in 1994, the first version of the "Riigikogu Elections Act" (RKVS)

referred the "registration of delegates of foreign, international and generally recognized

non-governmental organizations as observers and the issuance of their respective

credentials"65 to the National Election Committee (hereinafter NEC).

Although this provision seemed to refer exclusively to international observers, in

2002 a new electoral law was adopted that extended the NEC's competence to the generic

concept of "observer status" (vaatleja staatuse), which would henceforth be regulated via

regulation. Named as "Observer Status in the Riigikogu Elections"66 ("Vaatleja staatus

Riigikogu valimistel"), this regulation underwent minor modifications in 2014 and 2016

until its repeal on the first day of January 2017 when an amendment law to the electoral

law67 that included the regulation of the observer status directly in its articles was enacted.

In the explanatory memorandum to the draft of this amendment law68, it is stated

that this law aimed at revising the functions and competencies of the NEC, whose

workload had increased exponentially in recent years due to the introduction of electronic

voting, the management of European elections and other internal organizational matters.

While the modification of the regulation on the status of election observation was a

restructuring of the NEC's competencies, the explanatory memorandum details in each

article the change that was made and its justification.

The document recognized that the law did not establish the rules of observation,

but merely referred its ordinance to regulations, arguing that the publicity of the process

guaranteed by other provisions of the RKVS minimized the practical need for its inclusion

in the law. Despite this, it admits its inclusion as follows:

"It is an international custom to regulate observers in the law, and this has also been

a recommendation made by the OSCE/ODIHR observation mission for the Riigikogu

elections. The draft has been based on an observer status regime established on the

basis of the applicable law of the National Election Committee, the implementation

of which has not yet caused any problems. So far, the NEC has relied on the principle

65Article 14, Riigikogu valimise seadus (Vastu võetud 07.06.1994): https://www.riigiteataja.ee/akt/28675 66 https://www.riigiteataja.ee/akt/997818 67 https://www.riigiteataja.ee/akt/106052016001 68“Seletuskiri Riigikogu valimise seaduse ja teiste seaduste muutmise seaduse eelnõu juurde”: https://www.riigikogu.ee/download/db4c5d92-d2b0-45f3-861d-d887ef74c754 (Access: November 14th 2019).

that all election processes and documents are public in accordance with the RKVS

(except as provided by law) to establish observer status. Therefore, the regulations

concerning the observer have been minimal. Since everyone has the right to be present

in the polling stations, there is also no practical need to regulate the activities of the

observer, i.e. to give him rights which duplicate the principle of publicity of the

election operations."69

2.3.1. Republic of Lithuania

Unlike the previous case, the 'Law on Elections to the Seimas of the Republic of

Lithuania' ('Lietuvos Respublikos Seimo rinkimų įstatymas') did not provide for the

presence of observers, international and domestic, beyond those appointed by the parties

to monitor the voting centres. Despite having undergone approximately thirty

amendments since its adoption in 1992, the provisions on domestic observation remained

non-existent, as evidenced by the OSCE/ODIHR observation missions to the 2012

parliamentary and 2014 presidential elections. For the 2016 elections to the Seimas, the

Central Election Commission (CEC) informed the ODIHR mission that, although not

expressly provided for by law, it would issue accreditation to domestic observers upon

request70, and that approximately 200 domestic observers were accredited71.

With the victory of the "Lithuanian Farmers and Greens' Union" (LVŽS) party,

new proposals for amendments to the electoral law were again raised, although this time

the question of the status of the domestic observer in Lithuania would finally be

addressed. Thus, in 2018, this initiative was embodied in the so-called "Project No. XIIIP-

1680 (2)", prepared by the Committee of Public Administrations and Municipalities,

whose explanatory memorandum warned that the electoral legislation did not specify who

could be an election observer, that non-governmental organisations did not have the right

to nominate election observers and that election observers' protests and complaints were

not comprehensively regulated72. To this end, the project's objective was "to create

opportunities for all citizens of the Republic of Lithuania who have the right to vote and

69 Idem. 70 Republic of Lithuania, Parliamentary Elections, 9 October 2016, OSCE/ODIHR Needs Assessment Mission Report, page 10. (Access: November 19th 2019). 71 Republic of Lithuania, Parliamentary Elections, 9 October 2016, OSCE/ODIHR Election Assessment Mission Final Report, page 18. (Access: November 19th 2019). 72“Lietuvos respublikos seimo rinkimų įstatymo nr. I-2721 61 straipsnio pakeitimo įstatymo”: https://e-seimas.lrs.lt/portal/legalAct/lt/TAK/ee62ff90122711e88a05839ea3846d8e (Access: November 22nd 2019).

for any citizen of another country who has the right to vote in the Republic of Lithuania

or his/her country of nationality to become an observer"73.

Submitted for debate to the Seimas at its session of November 25th, the

Chairwoman of the Committee, Ms Guoda Burokienė, argued before the House that the

legislative changes established in the draft law were prompted by the recommendations

of the observers of the ODIHR mission in 201674. Likewise, by expressly regulating the

status of the election observer and broadening the spectrum of entities that can nominate

election observers, it sought to grant "non-governmental organizations (…) the same

rights as political parties and candidates"75.

Although some members of the opposition "Homeland Union - Lithuanian

Christian Democrats" (TS-LKD) asked whether the ODIHR recommendations were

binding or not, questioning the continued practice of amending the electoral legislation,

the legislative process was initiated after its approval by 65 votes in favour and 10

abstentions. Finally, the bill was adopted by unanimous vote, after receiving several

amendments proposed by the Legal Department of the Seimas (which evaluated the

articles) on November 25th 2018.

The positive evolution of the Lithuanian legislation to comply with the

international commitments adopted by this country, based on the recommendations made

by the ODIHR, has been recognized by the same organization in its latest electoral

evaluation reports of 2019, which noted the participation of approximately 360 domestic

observers belonging to three national organizations, despite the high level of trust existing

between the parties with regard to the administration and management of the process76.

2.4. Relevant case law in Europe?

Since there seem to be a small number of citizens' movements or organisations in Western

Europe claiming to be able to carry out domestic election observation missions, and in

Eastern Europe the vast majority of countries adopted this role once democracy was

established, there are few cases where this issue has come to be discussed in court.

73 Idem. 74 Transcript of the 210th sitting of the Seimas of the Republic of Lithuania (https://e-seimas.lrs.lt/rs/legalact/TAK/6d173f11c14e11e883c7a8f929bfc500/format/ISO_PDF/), page 36 (Access: November 25th 2019). 75 Idem. 76 Republic of Lithuania, Parliamentary Elections, 12 & 16 May 2019, OSCE/ODIHR Election Assessment Mission Final Report, page 19. (Access: November 20th 2019).

1) In Judgment no. II. ÚS 10/9977 (Slovak Republic), the association "Občianske

oko '98", set up to observe the 1998 parliamentary elections, claimed before the Slovak

Constitutional Court that its right to information, as set out in Article 26 of the

Constitution, had been violated by the National Election Commission, which refused its

request for observation. The court considered that the complainant was entitled to know

why was the organisation not allowed to observe, and since the Commission did not give

sufficient reasons for its refusal, it violated the right contained in Article 26(1) and (2)78.

While the court did not enter into the matter, the present legal configuration in

Slovakia provides that the right to information does not include the right to be present at

counting processes, so domestic observers (who may be present during voting) may only

attend the counting with the consent of the relevant District Election Commission, which

must justify its decision under Article 26.

2) In communication no. U-VII-833/199879 (Republic of Croatia), the

Constitutional Court of Croatia rules on the case presented by the association "GONG"

together with the "Croatian Helsinki Committee for Human Rights", which requested the

Electoral Commission to observe the local elections in Dubrovnik-Neretva County in

1997, and which was refused by the electoral administration for not fulfilling the

conditions outlined in Article 36 paragraph 4 of the local level electoral legislation, which

provided that "political parties and groups of electors who have nominated candidates for

the representative body of a local self-government unit may appoint observers to monitor

the work of the bodies in charge of conducting the elections". This provision was

interpreted in such a way that it would apply only to foreign observers80.

The appellants stated that the Election Commission of the Republic of Croatia

"interpreted the regulations on the participation of observers in the election process in an

unacceptably restrictive manner", referring to the worldwide accepted practice of

participation of domestic and foreign observers in election procedures. It also mentions

the "international commitments assumed by the Republic of Croatia in this regard and the

77“Ústavného súdu Slovenskej Republiky 10/99”: https://www.ustavnysud.sk/ussr-intranet-portlet/docDownload/e55f380b-f9a0-4725-9d92-c67dd9dd0c5d/Rozhodnutie%20-%20Uznesenie%20o%20spojen%C3%AD%20II.%20%C3%9AS%209_99.pdf (Access: December 10th 2019). 78 JUDr. K. Kovalčíková, (personal communication, December 13th 2019). 79“U-VII-833/1998, Odluka o usvajanju zahtjeva u nadzoru izbora”: https://sljeme.usud.hr/usud/praksaw.nsf/fOdluka.xsp?action=openDocument&documentId=C1256A25004A262AC12568030036D1CC (Access: November 25th 2019). 80 Idem.

absence of a rule prohibiting the participation of representatives of non-governmental

organizations in the electoral process"81.

The Court held that NGOs should be treated in the same way as foreign observers,

noting that the need for a broad interpretation of the provisions on the rights of observers

contained in existing legislation and instructions is important for the implementation of

all international commitments.

(3) One year earlier, the same Court issued communication U-VII-245/199782,

when it ruled on a contradiction between two mandatory instructions. Instruction Ož-IV

established that, at the request of a representative of a political party, the electoral body

would issue a copy of the minutes of the process, while according to instruction OLS-IV,

observers were not entitled to a copy of such minutes. The Court held that:

"The meaning and purpose of including observers in electoral procedures are

basically the same as that of including representatives of political parties. It therefore

follows that they should have the same rights. Observers in election procedures have

the same rights with regard to the minutes of an election body as representatives of

political parties, i.e. they also have the right to a photocopy of the minutes."

3. SPANISH LEGAL FRAMEWORK REGARDING ELECTORAL

OBSERVATION

In Spain, the law governing all electoral processes that take place in the national territory

is the LOREG, which applies to the election of Congress and Senate Representatives, the

election of the members of local administrations, the election of the European Parliament

Representatives, and, on a supplementary basis, to the elections of the legislative

Assemblies of those Autonomous Regions that don’t have their own electoral law (article

1 LOREG).

Within this legal framework, the role played by article 91.3 in the LOREG must

be emphasized, when it states that:

"(…) Only electors, representatives and members of the candidacies, their proxies and interveners,

have the right to enter the premises of the Electoral Sections; as well as the notaries, to attest to

any action related to the election, provided that they do not compromise the secrecy of the vote;

the agents of the authority that the President requires; the members of the Electoral Boards and

81 Idem. 82“U-VII-245/1997 Odluka o usvajanju zahtjeva u nadzoru izbora”: https://sljeme.usud.hr/usud/praksaw.nsf/fOdluka.xsp?action=openDocument&documentId=C1256A25004A262AC12567D200463F13 (Access: November 27th 2019).

the Judges of Instruction and their delegates, as well as the persons designated by the

Administration to gather information on the results of the scrutiny."

In this article we find a "de facto prohibition" of non-partisan domestic

observation in this country, given the fact that the drafting of a closed list of people with

the right to enter the polling stations, implicitly excludes the possibility that other roles

besides representatives and interveners may carry out electoral observation duties in an

accredited manner. However, the absolute nature of this provision will be discussed

further on.

This obstacle has been highlighted in successive reports83 by the OSCE/ODHIR

Electoral Assessment Missions in Spain for the elections to Congress held in 2004, 2008,

2011, 2015, and 2019. A total of five different reports constantly pointing at Spain’s

failure to comply with its international commitments (in reference to Paragraph 8 of the

Copenhagen Document) and to provide legal coverage for domestic (and even

international) electoral observation, despite repeated recommendations by the

OSCE/ODHIR missions.

Although Spain, compared to other states in Western Europe, expressly provides

for the citizen’s ability to witness the vote counting as one of the key moments of the

electoral process, the lack of accreditation by the electoral administration limits their

possibilities to observe the process in full, depriving them of the prerogatives of

representatives and interveners, and thus leaving them in a situation of inequality84.

The political participation of citizens on which constitutional democracy is based

is a fundamental right protected by Article 23 of the Spanish Constitution, while the other

provisions that enable citizens to intervene in matters that transcend their sphere of

interest constitute the concept of participatory democracy. Such provisions are a

manifestation of the generic mandate established in Article 9.2 of the Spanish

Constitution, which obliges public authorities to "enable the participation of all citizens

in political, economic, and cultural life."85

Article 9.2 of the Spanish Constitution operates as an enabling mandate for public

action and constitutes, at the same time, a legitimacy clause that provides constitutional

83Documents library, Resources (OSCE), Spain”: https://www.osce.org/resources/documents/spain?filters=+im_taxonomy_vid_3:(120)&solrsort=score%20desc&rows=10&category=Official%20Documents (Access: March 22nd 2019). 84Carlos Albisu (2014), “Análisis del sistema y prácticas electorales en España a través de las misiones de la OSCE/ODHIR”, p.49 (Access: April 1st 2019). 85 Enriqueta Expósito (2013), “Participación ciudadana en el Gobierno Local. Análisis desde la perspectiva normativa.” In Monografías de la Revista Aragonesa de Administración Pública. p.365

coverage to any other manifestations of the participative phenomenon that support and

enhance citizen intervention in public decision-making processes, even though the

Spanish Constitution may not specifically mention or define them.86

At this point, we have to ask ourselves: Would non-partisan domestic observation

constitute an expression of the participative phenomenon envisioned by article 9.2 CE

and, thus, a subjective right implicitly mentioned in the introductory title of the

Constitution?

Even though prima facie it could seem an additional mechanism of participation,

the observer role must be understood within the guarantee mechanisms of the electoral

process. This framing necessarily implies that, in order for non-partisan domestic

observation to be included in our system, it must be given legal coverage by means of an

Organic Law, as the rules of application for all electoral and referenda participative

processes of article 23 CE.87

In addition, the relationship with the rights to information and equality, both

enshrined in Chapter II of Title I CE, are also of particular importance for the recognition

of domestic observation.

4. FOUNDATIONS FOR INCLUDING THE OBSERVER ROLE IN SPAIN

Past attempts to observe electoral processes in Spain have been unsuccessful, since the

Central Electoral Board has decided against any request for non-partisan observation,

excusing itself in the lack of regulation of the observer role. In this regard, ODEM has

had its requests for accreditation of domestic observers during the Catalan Parliamentary

elections of 201788 and the general elections of November 10th 201989 rejected.

In view of the international commitments adopted by Spain in this field, such an

excuse is inadequate, and the continued practice of ignoring the recommendations to this

effect made by ODIHR missions, the lack of activity on the part of political forces and

86Ibid, p.368 (Access: 9 April 2019). 87 However, an alternative way could consist of their introduction in participative processes outside those mentioned in art. 23 CE, such as local participative consultations. 88 Acuerdo nº135/2017 de la Junta Electoral Central (http://www.juntaelectoralcentral.es/cs/jec/doctrina/acuerdos?anyosesion=2017&idacuerdoinstruccion=48433&idsesion=906&template=Doctrina/JEC_Detalle). 89 Acuerdo nº709/2019 de la Junta Electoral Central (http://www.juntaelectoralcentral.es/cs/jec/doctrina/buscadorresult?esinstruccion=false&idacuerdoinstruccion=71329&materias=0&numExpediente=195&operadoracuerdo=-1&operadorobjeto=-

1&sPag=1&template=Doctrina/JEC_Detalle&tipoExpediente=339&tiposautor=0&total=1).

the demonstrated effort of other European countries to insert the role of the domestic

observer in their electoral laws, regardless of the effective practice that it may

subsequently have, results in a scenario that discredits Spain's commitment to the

promotion of democratic values.

The impossibility of observing the electoral processes in our country by NGOs or

the civil society, both domestic and international, when the Spanish state provides

international observers through the Ministry of Foreign Affairs to the different electoral

observation missions of the EU, OSCE/ODHIR and the OAS90 is certainly paradoxical.

Thus, we can see in the annual statistical table regarding the participation of Spanish

election observers in election observation missions abroad91, that in 2018 alone, 21

election observation missions were carried out, of which seven were in the space of the

OSCE.

The "Practical Handbook for Electoral Observation" issued by the Ministry of

Foreign Affairs in 2014, also states that the presence of domestic observers "constitutes a

guarantee of the transparency of the process, therefore it is an essential element to

observe"92. However, this seems to refer more to a unidirectional view of the relevance

of domestic observation.

However, Spain's status as an OSCE member state not only allows it to send

domestic observers abroad to OSCE-sponsored missions but also implies a commitment

to receive observer missions sent by ODIHR when general elections are organised in our

country. Paragraph 8 of the Copenhagen Document, in addition to being the provision par

excellence for domestic election observation, also operates as the enabling mandate for

official election observation missions that the OSCE, when it establishes that the Member

States "shall permit observers from other member States, as well as appropriate private

institutions and organizations that so wish, to observe the conduct of their national

election processes".

If the practice of sending Spanish observers abroad and enhancing the work of

local domestic observers during the development these missions while in Spain the

90 Carlos Albisu (2014). Análisis del sistema y prácticas electorales en España a través de las misiones de la OSCE/ODHIR, p.48. 91Observadores electorales españoles en misiones de observación electoral (2018): http://www.exteriores.gob.es/Portal/es/PoliticaExteriorCooperacion/DerechosHumanos/Documents/Participacion_observadores_electorales_espanoles_en_MOE.pdf (Access: December 2nd 2019). 92 Dirección General de Política Exterior y Asuntos Multilaterales, Globales y de Seguridad, Oficina de Derechos Humanos (2014). Manual Práctico de Observación Electoral, p.69. (Access: April 5th 2019).

possibility of observing is denied has created a significant inconsistency, we can identify

a second inconsistency with the data set out above: if our electoral legislation, under

Article 91.3 LOREG does not provide for the existence of domestic or international

observers, the admission of missions sent by the ODIHR is an exception to the rule.

Following the literal wording of the article, by establishing a numerus clausus of

persons with the right to enter the premises of the polling station, any other subject not

reflected in this list is automatically excluded. This is, however, a provision that is too

difficult to comply with, especially when there is evidence of the habitual presence of

other subjects not provided for in Article 91.3, such as the media93. In this sense, it is clear

that access for observers of ODIHR missions is not provided for in the LOREG either,

but even so, the State admits these missions. But how?

The Central Electoral Board, in its session of December 4th 2017, where ODEM's

application for observer accreditation was rejected, responded to this question by stating

that its reasons were based on the "Report of the Directorate General of Domestic Policy",

which establishes that:

"Spanish electoral regulations do not regulate the role of the foreign electoral observer

and no electoral observation visits are organised either by the Ministry of the Interior,

the Central Electoral Board or the Ministry of Foreign Affairs and Cooperation,

except in the case of the OSCE missions, which are governed by the 1990

Copenhagen Document"94

We can see that the Central Electoral Board justifies the presence of ODIHR

observers based on of the commitments adopted in Copenhagen, so that the legislative

silence regarding international observers and the numerus clausus of the article is

bypassed by establishing the exceptionality of the case. As we will recall, the

commitments adopted internationally in Copenhagen are political, which means that the

Member States are not strictly bound to comply with them, although they are expected to

behave cooperatively and in good faith.

In this regard, it seems clear that an OSCE member State may face certain political

repercussions at international level if it refuses to receive ODIHR observers, but refusing

accreditation to NGOs and civil society organizations has a less impact95 since these

93 Informe ODEM «Observació electoral doméstica a Catalunya» (odem.cat). 94 Secretaría de la Junta Electoral Central, (personal communication via ODEM, December 7th 2017). 95 It is usually reduced to the commentary of ODIHR in its reports from observation missions to the specific State, as a reminder of the recommendation for inclusion of the observer role in national legislation.

decisions will hardly go beyond the borders of the country in question, a situation that is

aggravated if there are hardly any organizations interested in observing these processes

that organize themselves to demand that the State fulfil its international obligations.

Both the enabling mandate of the ODIHR missions and the recognition that the

presence of international and domestic observers enhances the electoral process are found

in the same paragraph, and yet the initiative of domestic observation is discarded for lack

of legal regulation. Given that nothing strictly obliges the Spanish State to invite ODIHR

observers, we find the third incongruence in understanding that it accepts and operates

under the commitments of paragraph 8 of Copenhagen, while at the same time it would

be omitting or deliberately restricting certain content of the same precept by making an

arbitrarily restrictive interpretation of Article 91.3 of the LOREG.

The wording of paragraph 8 states that states "shall permit observers (…) from

appropriate private organizations who so wish to observe the course of their national

electoral processes", and in this regard, the fifth director of the ODIHR, Mr Janez

Lenarčič, in his speech on the occasion of the introduction of the Declaration of Global

Principles for Non-Partisan Election Observation and Monitoring by Citizen

Organizations and Code of Conduct for Non-Partisan Election Observers and Monitors

in 2012, established categorically that this term includes "domestic non-partisan

observation groups"96.

The arbitrariness found in the decisions of the electoral administration when

accrediting observers is accentuated when we see that there have already been two

previous cases in which access has been formally admitted to subjects outside the

provisions of Article 91.3 LOREG and without any relation to ODIHR missions. Thus,

we find Agreement 179/201497 by which authorisations were granted to a series of

unspecified "election managers", and the presence of international observers from the

Association des États Généraux des Étudiants de l'Europe (AEGEE), who noted the lack

of uniformity and difficulties that the election administration encountered when

96Commemoration of the launch of the Declaration of Global Principles for Nonpartisan Election Observation and Monitoring by Citizen Organizations, United Nations (New York, April 3rd 2012): https://www.osce.org/odihr/elections/89507?download=true (Access: December 5th 2019). 97http://www.juntaelectoralcentral.es/cs/jec/doctrina/buscadorresult?esinstruccion=false&idacuerdoinstruccion=28661&materias=410&operadoracuerdo=-1&operadorobjeto=-1&sPag=1&template=Doctrina/JEC_Detalle&tiposautor=0&total=4

interpreting the legal vacuum that exists concerning the accreditation of international

observers98.

The State could justify the present situation by saying that the high degree of trust

of the Spanish society in the transparency of the democratic process makes the adoption

of additional guarantee measures unnecessary (that is to say, such a measure would only

“preach to the converted”). The truth is that reality shows otherwise: in recent years, in

most European countries confidence in elections and institutions has generally declined.

This was made evident in the last 2018 Eurobarometer survey, when the EU

citizens were asked if they believed their countries were doing what was needed to

prevent illegal and fraudulent activities during elections. Spain ranks 26 in a list of 28

states: only 40% of the interviewees approves of the existing guarantee measures, while

51% disagrees.

Figure 2

.

Source: 2018 Eurobarometer

Likewise, when asked about their level of satisfaction regarding the opportunities

for civil society to play its role in promoting and protecting democratic values, Spanish

98 Page 8, Spain General Election (20 December 2015) AEGEE EOM Report: http://issuu.com/eop-aegee/docs/general_election_spain_2015-fr?e=15451208/34190575 (Access: December 11th 2019).

citizens are divided between a 49% who declare themselves satisfied, and 47% who

express dissatisfaction.

Figure 3

Source: 2018 Eurobarometer

As evidenced above, results in Spain do not indicate a situation that would advise

disregarding the inclusion of further guarantee measures, such as electoral observation.

The integrity of the country’s electoral processes should not be taken for granted, however

robust it may look. The insights from civil society organizations about electoral processes

are essential to ensure consistent development and improvement of their execution, and

to enable a greater exercise of citizen’s political and civil rights.99

The monitoring task should not be left solely in the hands of political parties and

governments. Rather, a cooperative framework between citizen’s organizations and

political officials should be designed to address the increase of misinformation in the

political discourse and social media. The Spanish civil society has to adopt a more active

role in this matter since citizens live in the societies, they help shape and build, the

increase of electoral fraud accusations cannot be only countered with the opposed

versions of the political parties. Rather, the existence of reports made under the

internationally accepted standards of impartiality and objectivity of monitoring citizen

99 Armin Rabitsch (2018), “Presentation of the Second Human Rights Congress of Warsaw” (15 Dec). In Workshop of International standards of election monitoring.

organizations on the development of the electoral processes in our country to help to

dismantle such accusations and to stop the diffusion of disinformation becomes a

necessity.

As a result of all the exposed information, we can draw the following conclusions:

• The question of why or for what purpose domestic observation is needed in a

society with a consolidated democracy should not be the focus of the discussion,

since it diverts attention from the debate on the fundamental aspects of the debate;

• The international obligations adopted by Spain should be fulfilled and a process

of introduction of the observer role in our legislation should be initiated, despite

the foreseeable difficulty of finding a parliamentary consensus for the reform of

an organic law such as the LOREG.

• If the above is not possible, and taking into account the acceptance and partial

fulfilment of paragraph no. 8, there is no reason why the Spanish electoral

administration should not review its practice and extend its will of accrediting

observers to all those Spanish and foreign citizens who want to monitor the

electoral processes in our country, putting an end to all the inconsistencies

described before.

• In this sense, following the practice of other countries of the OSCE area, the

presence of domestic observers could be established by means of a way of

exception to the rule, by means of an administrative measure proper of the

electoral administration and an open interpretation of Article 91.3, all of it

substantiated on the basis of the commitments adopted in Copenhagen.

"Transparency strengthens democracy; politics behind closed doors

weakens it,"

~Christian Strohal, 4th director of ODIHR100

100OSCE, Press release: https://www.osce.org/odihr/elections/49438 (Access: December 15th 2019)

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