As it is known, the National Assembly is to discuss and adopt the new Electoral Code during the coming months. It is going to differ significantly from the current Code. Taking into account the fact that the Armenian voter lists contain hundreds of thousands of citizens who are dead or are absent from the country (and this circumstance generates a risk of voting instead of these persons), as well as the fact that numerous instances of double-voting were registered during the referendum on December 6, 2015, we, the undersigned organizations, consider it utterly important to introduce mechanisms for fighting against double-voting. We consider the publication of the lists of voting participants (containing voters’ signatures) as the most efficient method of coping with the aforementioned phenomenon. This will make it quite easy to reveal the instances of voting instead of absent citizens.
In this regard, we consider it necessary to note that:
1. The publication of lists of voting participants cannot be regarded as a violation of the principle of secret ballot as Article 7 of the current (new) Constitution stipulates that the vote is secret, and not the participation. Moreover, Article 154 (“Violation of the Principle of Secret Ballot”) of the RA Criminal Code explicitly stipulates that the term “secret ballot” refers exclusively to the voter’s voting result, and in no way does it refer to the fact of participating in the voting. And there is no other interpretation of the term “secret ballot”.
2. The aim of the principle of secret ballot is to ensure that the voter is able to express his/her will without anyone knowing how he/she voted. However, the voter cannot keep secret the fact of his/her participation in the voting, and anyone can reveal whether this or that citizen participated in the voting by using legal ways and in case of presence of some resources. For instance, it can be done by controlling the entering and leaving the polling station, or it can be done by proxies inside the polling station (on the voting day). Moreover, the legislation does not stipulate (and it cannot do that in any way) the secrecy of voters’ participation in the voting, and the state does not and cannot ensure it as well.
3. Article 51 of the current (new) Constitution stipulates that the right to obtain information can be limited only by public interest or for the protection of others’ fundamental rights and freedoms. Hence, the publication of the lists of voting participants not only does not violate public interest but also arises from the public interest of having fair and equal elections, as stipulated by Article 7 of the same Constitution. At the same time, the publication of voter’s participation in the voting is not a fundamental right or freedom as neither the Constitution, nor any other document stipulates that the citizen has the right of secret participation in the voting. Thus, the lists of citizens who participated in the elections should be accessible.
4. The RA Constitutional Court expressed its legal position in this regard in 2012 by mentioning that “the lists signed by voting participants are one of the elements of secret ballot and are not subject to publication”. However, the Constitutional Court also added that “the availability of any information regarding protection of electoral right (within the framework of procedures envisaged by the legislation on the protection of electoral right) cannot be blocked”. In fact, the RA Constitutional Court has stated that not publishing the voting participants’ lists is not unconstitutional but, at the same time, it has not mentioned that the publication would be unconstitutional. In other words, the RA Constitutional Court has left the resolution of this issue to the National Assembly.
5. Although the lists of voting participants are not published in some leading democratic countries, it is worth noting that public trust towards elections is high in those countries, the voter lists are not inflated and the instances of double-voting are dramatically fewer in number compared to Armenia. Moreover, there also exist democratic states where the lists of voting participants are published. These countries include but are not limited to the USA, the United Kingdom, New Zealand and etc.
Hence, based on the above, we call on the authorities of Armenia to introduce the institute of publication of the lists of voting participants as a mechanism for preventing double-voting. This mechanism will serve the public overriding (constitutional) interest of having fair and equal elections.
Union of Informed Citizens NGO
Journalists’ Club “Asparez”
Protection of Rights without Borders NGO
Foundation against the Violation of Law NGO
Transparency International Anticorruption Center
Democracy for Development NGO
Armenian Institute of International and Security Affairs
Open Society Foundations – Armenia
Helsinki Citizens’ Assembly Vanadzor Office
Yerevan Press Club
Committee to Protect Freedom of Expression
National Citizens’ Initiative NGO
Ecolur NGO
Unison NGO
Khazer NGO
Small and Medium-Sized Business Foundation NGO
Consumer Consultation Center NGO
Shogher Union NGO
Urban Foundation
February 10, 2015