The Constitutional Court of the Republic of Armenia chaired by the President of the Constitutional Court G. Harutiunyan, represented by the Deputy President of the Constitutional Court V. Hovhannissyan, the Constitutional Court Members A. Gyulumyan, F. Tokhyan (except the sitting held on April 16, 2003), H. Nazaryan, R. Papayan, V. Poghossyan, V. Sahakyan, M. Sevyan,

with the participation of

A. Sargsyan, V. Dalakyan, T. Manaseryan, the representatives of the Applicant S. Demirchyan, the candidate for President of the Republic of Armenia,

the respondent, H. Abrahamyan, T. Mukuchyan, G. Nersesyan, the representatives of the RA Central Electoral Commission,

pursuant to Clause 3 of Article 100 and Clause 3 of Article 101 of the Constitution of the Republic of Armenia, to Clause 3 of Article 5, to Clause 3 of Article 25, and to Articles 57 of the Republic of Armenia Law “On the Constitutional Court”,

From April 03, 2003 to April 16, 2003 considered in a public hearing the case “On the dispute of the results of the elections for RA President held on March 5, 2003”.

The case was initiated by the candidate for President of the Republic of Armenia; S. Demirchyan’s petition filed with the Constitutional Court.

Having examined the petition of the candidate for President of the Republic of Armenia S. Demirchyan at March 26, 2003 session, the Constitutional Court of the Republic of Armenia made a procedural decision to accept the case for hearing and in conformity with Articles 39, 40 and 57 of the Republic of Armenia Law “On the Constitutional Court”, the Constitutional Court designated the RA Central Electoral Commission as respondent.

In order to prepare the case for examination following the procedure of Article 36 of the Republic of Armenia Law “On the Constitutional Court” and to present the circumstances of the case, the Constitutional Court Members A. Gyulumian, H. Nazaryan and M. Sevyan were appointed as reporters.

Having heard the reports of the RA Constitutional Court Members A. Gyulumyan, H. Nazaryan and M. Sevyan, having examined the explanations, mediations and suggestions of the representatives of the applicant and the respondent, explanations of the CEC Chairman A. Sahradyan invited as a witness and as well as having investigated the petition and other existing documents of the case, the Constitutional Court of the Republic of Armenia

FINDS:

1. The Elections for President of the Republic of Armenia were held in two rounds: the first round was held on February 19, 2003. Having summarised the results of elections held on February 19, 2003, on February 25, 2003 CEC drew up the decision 27-N on implementation of runoff of the Presidential Elections of the Republic of Armenia between Robert Kocharyan and Stepan Demirchyan to be held on March 5, 2003.

Results of the first round of elections were appealed at the RA Constitutional Court by the Candidate for RA President A. Geghamyan, whose petition on recognition of the results of elections held on February 19, 2003 as null and void was declined by the RA Constitutional Court by the decision DCC-408 drawn up March 24, 2003. The second round of the elections for President was conducted on March 05, 2003 within the timeframes stipulated by Article 51 of the RA Constitution.

2. In compliance with the procedure established by Article 82 of the RA Electoral Code in the day of RA Presidential elections of March 05, 2003 in ballot papers there were included two candidates for RA President who received the most votes in the first round of elections, that is Stepan Demirchyan and Robert Kocharyan.

Having summarised the final results of elections, on March 11, 2003, the CEC issued a summarisation protocol, according to which in accordance with the voters lists in precincts the total number of voters compiled was 2,331,507. 1,595,702 voters took part in the elections. Precinct Electoral Commissions (PEC) were given 2,423,018 ballot papers, 826,782 ballots of which were cancelled. In the ballot boxes were found 1,595,438 ballot papers, 32, 367 of which were recognised as invalid. There were 14,501 ballots were the vote was cast against all candidates. The number of votes given in favour of the candidates was 1,548,570. The number of votes given to candidates was cast in the following way: Stepan Demirchyan 504,146 and Robert Kocharyan 1,044,424. The size of discrepancies was 1062. By the majority of votes of the CEC members (7 for, 0 against, 1 abstaining, one member of the commission did not participate in the vote) in compliance with the decision 36-A made on March 11, 2003 Robert Kocharyan was elected as President of the Republic of Armenia.

3. On March 17, 2003 the Candidate for President of the Republic, Stepan Demirchyan applied to the Constitutional Court and by arguing that in the course of preparation, organisation, implementation and summarisation of the results of elections, basic principles of the electoral law established by the RA Constitution were violated, i.e. the equality, freedom and secrecy of elections, the expression of free will of voters was infringed, demanded to recognise the elections of March 05, 2003 invalid.

The Applicant finds that:

• In the course of pre-election campaign the principle of equality was violated and the candidates were not provided with the possibility to conduct pre-election campaign in conditions of free and fair competition. From the side of the other candidate officials took part in pre-election campaign, state funds were used, foreign citizens also conducted propaganda. Mass media also did not provide equal conditions for the candidates. During the period preceding the second round of elections proxies and employees of the pre-election headquarters of the Applicant were intimidated be being subjected to illegal administrative responsibility.
• The procedure stipulated by law on formation of precincts and precinct centres was violated. In certain precincts more than 2000 voters were involved and often two, sometimes even three different precinct centres were placed in the same building. This kind of violations of the law created obstacles for the voters’ participation in elections, which assisted ballot stuffing.
• PEC formation was also implemented through violations of the RA Electoral Code. TEC members were unable to appoint new members in compliance with their applications by replacing those PEC members who terminated their powers.
• The Applicant also contends that rights of his proxies have been violated and in some precincts on the day before elections they were prohibited from participating in the work of the PEC or were invited to leave the precinct centers on the day of elections and did not have the possibility to conduct an accurate monitoring over the election process.
• A number of cases of voting instead of another person took place, as a result of which voters who came to precincts lost the possibility of enjoying their right of vote. There were also cases of voting instead of people who are abroad, what, according to the Applicant, ascertains that TEC and PEC rejected the petition of the applicant candidate’s proxies on providing them with copies of the lists of voters already participated in voting.
• There were also cases of open voting, what testifies to the violation of the principle of voting by secret ballot.
• In the course of voting many facts of stuffing were registered, what was testified, according to the Applicant, by dozens of ballots appeared in the applicant candidate’s headquarters the day before the elections, signed, stamped, marked in favour of the other candidate, as well as CEC envelopes stamped by the CEC for sealing the PEC seals. As a result of ballot box stuffing the number of voters has been artificially increased, what, according to the Applicant, impacted on the results of elections.
• Terms of Clause 8 of Article 61 of the RA Electoral Code were violated and summarisation protocols of the results were not posted in precincts, as a results of which the publication of the results of voting was not ensured and voters did not have a possibility to become acquainted with the results of elections.
• Proxies of the applicant candidate also faced obstacles in requesting verification activities for disclosing the conformity of precinct protocols with the results of elections. In regard to the elections of March 5, 2003 verification activities were requested in 235 precincts; in respect of 64 of those precincts Territorial Electoral Commissions rejected to register the application – complaints; in respect to 171 of the precincts TEC declined to arrange verification on then basis of the application – complaints; on the basis of applications, verifications were carried out only in 16 precincts.

4. In order to establish the existence of the above-mentioned violations on substantial grounds the Applicant brings as evidence documents attached to his application, the discrepancies of the statistical data found in the officially published results and in summary protocols provided them by 33 precinct electoral commissions, analysis of the results of voting from different precincts, as well as conclusions of the election observation missions.

In order to give grounds to the position of the Applicant attached to the application there were also presented applications addressed to electoral commissions and the Office of the General Prosecutor, complaints, protocols made by proxies, copies of TEC protocols, list of dead or absent people, copies of certificates of proxies, passports of citizens and ballots; according to the pagination the total was 1617 pages, but in fact it is 1607 pages, 281 of which referred to the first round, 220 pages are repeating documents, 305 pages are lists of those citizens who, as per the application, are out of the Republic or are dead, 105 pages are copies of certificates, passports and ballots, and 10 pages are blank forms.

5. In regards to the documents submitted by the Applicant the respondent contends that RA CEC summarised the results of elections in compliance with the Electoral Code of the Republic of Armenia, and there are no ground to recognise the results of elections as null and void because:

• violations mentioned by the Applicant can be considered as proved only in case of availability of corresponding decisions of courts of general jurisdiction, although, as a rule, with regard to electoral violations applications were not submitted to courts, and in some cases when the applications were submitted the facts of violation were not certified.
• Facts presenting the position of the Applicant, which, at the same time, did not have legal grounds, rather aimed at creating an illusion of massive violations than proving the provisions of the application. Materials attached to the application, as per the respondent, cannot provoke any legal consequence. There are many contradictory, not addressed and not signed documents. Most of them are suppositions, impressions, unproven news, whose authors often were not even proxies not registered by the stipulated procedure. According to the respondent, 104 people of those who signed applications and protocols presented by the Applicant were not proxies registered at CEC by the procedure established by law and sometimes in documents drawn up by the same proxy there were different signatures.
• According to the respondent, in the course of pre-election campaign the principle of equality was guaranteed by providing the candidates with equal rates of payable and equally free airtime and equal extent of press coverage. By an established order and by raffle of airtime all candidates were equally provided with means of mass media. The party also contends that manifestations of freedom of speech of some citizens and mass media cannot be considered as violations of the principle of equality in the pre-election campaign.
• In the opinion of the respondent, the officials mentioned by the Applicant, i.e. ministers, members of the National Assembly, marzpets, community leaders are out of the circle of those people prescribed by Article 18 of the Electoral Code of the Republic of Armenia who are forbidden to take part in pre-election campaign. According to the respondent, in compliance with the RA Law on “Civil Service” positions occupied by those mentioned by the Applicant are political and discretionary positions, therefore, are out of the circle of those who are prescribed by Article 18 of the RA Electoral Code.
• According to the respondent, subjecting some people to administrative responsibility for causing public disorder cannot be considered as intimidation of proxies and violations of their rights. During the period of time preceded the second round of the presidential elections fact of subjecting some proxies of the Applicant to administrative responsibility could not impact on the results of elections.
• According to the respondent, the composition of some precincts by certain deviation was a consequence of recovery of the electoral right by judicial procedure and taking into consideration that the presidential elections of the Republic of Armenia are carried out all over the country (one single mandate constituency), this kind of deviation cannot have impact on the results of elections.
• The respondent also contends that formation of the electoral commissions was implemented in accordance with terms of the law. In the first round of elections in precinct electoral commissions under the names of members representing oppositional parties dozens of applications on rejecting to perform their duties were written, which were not upheld only due to being false. In order not to contradict the Electoral Code those people , who at the same time were proxies, were not appointed as commission members. However, in all cases on the day of voting representatives of oppositional parties formerly appointed on commissions participated in works of those commissions. The respondent thinks that there are numerous cases when persons mentioned in the application, who as though were unable to participate in works of commissions. In reality, they participated, signed the summarisation protocol and did not even present a special opinion.
• Violation of rights of those individuals, who presented requests for verifications, according to the respondent, does not correspond to reality, since a part of these were not presented in timeframes stipulated by law and a part was presented by non certified persons, often on the basis of statements of non-witnesses or the same person presented requests for verification of conformity of precinct protocols with the factual results with regard to a number of precincts but without being registered in the administrative journal of that respective precinct.
• The respondent insists that also the lists of dead people and those who are out of the country presented by the Applicant did not correspond to the reality. According to the conclusion of the respondent, rare facts of violations of the electoral right were a negative factor but did not impact on the results of elections.

6. Upon the demand of the Constitutional Court the Central Electoral Commission presented the following documents on the organisation and implementation process of elections:

Copy of the protocol of the CEC 11.03.2003 sitting, copy of the summarisation protocol of the results of elections of March 5, 2003, copy of the decision 36-A drawn up on the basis of the latter and copies of special opinions of CEC members, as well as copies of summarisation protocols from all 56 TEC and copies of special opinions presented by members of those commissions, reference from all 56 TEC concerning verification activities and their results prescribed by Clause 10 of Article 62 and Article 40 of the RA Electoral Code implemented on the basis of the written demands of proxies for the candidates and PEC members who submitted special opinions, normative acts and instructions approved on the implementation of the RA Electoral Code concerning the elections of the RA President in compliance with Clause 7 of Article 41 of the RA Electoral Code, reference concerning application – complaints and results of discussions over the application – complaints received by the CEC regarding the elections of March 05, 2003, reference on changes implemented in compositions of electoral commissions after February 20, 2003 and grounds for these changes, reference made in compliance with Clause 2 of Article 82 of the RA Electoral Code on printing procedure and quantity of ballot papers ordered at the ballot printing organisation, as well as concerning the number of printed ballot papers, copy of the decision on defining a procedure for registering proxies by CEC in accordance with Clause 3 of Article 27 of the RA Electoral Code, as well as the list of proxies who received certificates and were registered according to Article 27 of the RA Electoral Code.

References were received from the RA Prosecutor-General on statements and the process for discussion of these statements concerning violations of electoral legislation in the course of the presidential elections of 2003.

From the Council of Court Chairmen of the Republic a reference was requested and received: copies of PEC decisions concerning the results of elections, complaints presented to courts of general jurisdiction of the Republic against CEC activities (omissions), as well as copies of decisions on subjecting some persons to the administrative responsibility in regards to illegal demonstrations and marches held after February 20, 2003.

7. Elections held on March 05, 2003 were organized and the results of elections were summarized in compliance with Article 15 of the RA Electoral Code in 1,865 polling stations established all over the Republic. According to Clause 3 of the same Article, election commissions were also formed abroad in the RA diplomatic and consular representations. In compliance with the Article 31 of RA Electoral Code, the elections were conducted through a three-tier Election Commission system. The whole process of the election was organized and supervised by the Central Election Commission.

8. The various violations mentioned by the Applicant refer to 417 electoral precincts. The representatives of the Applicant emphasized that the violations’ facts must be considered established in those precincts, where the request was submitted in regards to verification of the factual results of the election with the protocols. Such a request was submitted from 235 precincts of the mentioned ones. Such a request was submitted in regard of 141 precincts by the proxies, whose legal status was disputed at the Constitutional Court. Territorial Election Commissions checked the compliance of the protocols of 45 precinct election commissions with the factual results of the elections.

9. Item 8 of the Copenhagen Document of 1990 of the OSCE mentions that the participation of the local and international observers may raise the authority of the election process in the country, where elections are being conducted and for that reason the respective country invites observers to observe the elections in the framework prescribed by the law.

Twelve international and 31 domestic organizations that implemented observation mission during the preparation, implementation, and summarization were accredited in accordance with the defined procedure of Article 29 of the Electoral Code. According to the Article 30 of the Electoral Code the observers were given the opportunity of functioning throughout the election process. The conclusions in regards with the second round of the elections were given by the Parliamentary Assembly of the Council of Europe, OSCE Office for Democratic Institutions and Human Rights, CIS observation missions as well as domestic organizations implementing observation mission.

10. In the course of investigating the case it became obvious that parties have different interpretation of provisions of Article 40 of the Electoral Code and in the issue of court appeal of voting results. The Constitutional Court finds:

1. The legislator in Article 40 of the Electoral Code does not precisely separate the dual function of territorial election commissions. According to that Article, the latter summarizes election results during majoritarian parliamentary elections and disputes regarding its decision in that case is subject to jurisdiction of the constitutional court (Article 116, Clause 8), while during proportional parliamentary elections and Presidential election territorial election commission summarizes voting results, which are submitted to CEC to summarize election results;
2. Clause 1 of Article 40 of the RA Electoral Code emphasizes “Decisions, actions and inactivity of election commissions, with the exception of the decisions of the territorial election commission on the summarization of voting results, can be appealed to a superior election commission or court...”. Clause 2 of the same Article establishes that “The decisions of the territorial election commission on summarization of election results are appealed to the Central Election Commission”. Clause 3 of Article 62 of the Code establishes that summarization protocols of elections in a constituency are made “Not later than within 48 hours after the completion of voting, and in case of complaints in the court, or territorial election commission on the results of voting in the precincts – not later than in 5 days...”. Clause 3 of Article 63 obliges CEC “...based on the complete final results of the elections in constituencies, not later than within 72 hours after completion of the voting, and in case of the complaints in the court or territorial election commission on the results of voting in the precincts – not later than in 6 days...” to compile election summarization protocols;
3. It is obvious that the legislator has separated the order of court appeal sof voting results of precincts from order of their appeal in territorial election commissions. However, within the framework of this case, opportunities of court appeal of precinct voting results were not emphasized, there is no fact of such appeal.

The RA legislation created wider possibilities for court defense of suffrage. Specifically, Article 153 of the RA Civil Procedure Code foresees that “a citizen, a party (alliance of parties), which find that a decision, action (inaction) of a state body, local self-government body or authorities thereof has violated its right to elect or to be elected, may apply to a court investigating civil cases”. Article 154 of this Code obliges that such an application be investigated within 5 days after its receipt, but no later than the day of election, and an application received on the day of election shall be investigated immediately. Study of materials available in the case and results of investigation also show that there weren’t any legal violations related to precinct voting process appealed to courts through a special claim procedure by the Applicant or persons authorized to do so.

In the documents attached to the Application presented to the Constitutional Court and in the course of the investigation there are only indications of various reports, statements, protocols and other writs on this matter presented in various ways. There is no basis for considering this as evidence. In accordance with the references provided by the RA Office of Prosecutor General there were 150 complaints received regarding election-related violations, out of which 88 relate to the second round. Overall 14 criminal cases were initiated, in regard to 76 complaints initiation of a criminal case was rejected due to absence of a criminal incidence or corpus delicti, in regard to 60 preparation of materials continues. There isn’t a verdict, a court decision or court ruling in regard to any legal violation.

On the other side, study of materials of investigation and decisions of Yerevan Center and Nork-Marash, Kotayk and Armavir courts of first instance in regard to claims on elimination of inaction of territorial election commissions, shows that the courts have shown strictly formal approach to issues of court defense of suffrage in court.

11. In accordance with the Clause 7 of Article 61, out of approximately 1000 summary protocols received by Applicant’s proxies, summary protocols of voting results of 33 polling stations were presented by the Applicant to the Court. Data of these protocols, as per the Applicant do not correspond to the published official data. Out of these, protocols of polling stations 0498 and 1063 are missing a seal, while the protocol of polling station 0635 is not signed and sealed. In polling stations # 0018, 0242, 0444, 0492, 0502, 0507, 0508, 0510, 0515, 0521, 0523, 0529, 0538, 0550, 0553, 0748, 0779, 0842, 0865, 0909, 1000, 1011, 1065, 1230, 1340, 1341, 1361, 1524, 1657, 1784 summary protocols of voting results were made by results of 5 March 2003 election. Copies of these protocols were provided in accordance with the established to the proxies of the candidate. Later, as per the Applicant, protocols presented to TEC's were altered:votes for Presidential candidate S. Demirtchyan were decreased, while votes votes for Presidential candidate R. Kocharyan were increased, or there are numeric deviations between prtocols provided to candidate proxies and final calculations. As a result of the investigation of the case and expertise of the presented protocols it was found that in polling stations 0242, 0492, 0510, 0523, 0529, 0909, 1230 and 1657 there were adjustments to final numbers of voting as a result of verifications implemented in accordance with the order and within a framework established by the law. In regard of the remaining 22 polling stations arguments brought by the Applicant have not been refuted in the Constitutional Court.

Such facts and ballot box stuffing, open voting, incorrect vote count incidents, illegal circulation of envelopes foreseen for commissions and ballots in individual polling stations, biased treatment by media, voter impersonation and other, even limited number of examples presented in the case, witness that concerns of the OSCE observation mission regarding March 5, 2003 Presidential Election are fair.

12. Investigation of the case shows that election commissions left out of their focus the effective control over the pre-election campaign. This mission was undertaken by non-governmental organizations or observers. Requirements of Article 11 of the RA Law “On Television and Radio” also weren’t implemented with due consistency. As a result, there was not only a biased treatment in the media, but also reported violations of legal and moral norms in individual coverage instances.

For Candidates equal opportunities are closely connected to formation of opinions by voters and assumes neutrality of state bodies in regard to the election process, specifically, pre-election campaign and media coverage. However, based on international legal standards, the principle, according to which pre-election campaign must be honest and fair, may not be interpreted to such an extent as to exclude the freedom of speech and the right to receive information.

13. Investigation of the case shows that institute of proxies had a special importance in defending interests of the Applicant, since he was not represented with a sufficient counterbalance in the commissions. However, a number of proxies were subjected to administrative detention in the second round and were deprived of the possibility of further active actions. Subjecting to administrative detentions for participation in unauthorized gatherings and demonstrations is an interference with the right of freedom of peaceful assembly foreseen in Article 11 of the European Convention for Protection of Human Rights and Fundamental Freedoms. Such interference is in contradiction with the Article 11 of the Convention in cases when such interference is “not foreseen by the law”, does not follow any legitimate aim established in the Clause 2 of the Article 11 and is “not necessary in the democratic society” in order to achieve those aims.

After studying decisions of the courts of general jurisdiction in regard to proxies, the Constitutional Court finds that first of all such application of the institute of administrative detention in the country is in contradiction with European standards for the rule of law, and second - both the form and the content of decisions of similar nature made by the courts must be subject for discussion in both the RA Council of Court Chairmen and RA Council of Justice.

14. Investigation of the case shows that the issue related to status and powers of a proxy has also become a subject of various interpretations in the election process.

The RA Electoral Code gives a special importance to the institute of proxy as to a subject of electoral legal relations, a bearer of the function of protecting electoral right and implementing control over the election process. In relation to state-wide elections, a number of the RA Electoral Code Articles (7, 9, 18, 27, 30, 34, 41, 42, 47, 54, 55, 57, 61-63) establish provisions, which ascertain the framework of legal relations, in which proxies realize rights and bear responsibilities. Analysis of all these Articles of the Electoral Code and specifically Articles 27 and 30 (which establish the status, rights, obligations and order of activity of proxies) shows that:

• proxies are called to represent a candidate in certain relationships established by the Code in election commissions, with state and local self-government bodies, organizations and media (Art. 27, Clause 1);
• they are subject to registration and act within the framework of an established order;
• a candidate protects his/her interests in an mediated manner through proxies, and at any time can call back his/her proxy and appoint a new one instead “...by keeping a corresponding election commission informed about it in writing” (Art. 27, Clause 1);
• the concrete function of a proxy in relation to the voting process: on the day of election (he/she) follows the work of election commissions (Art. 30 Clause 4), implementing a control mission in a given commission.

It is obvious, that each proxy is a legal subject in some concrete relationships and can realize his/her rights and bear responsibilities only within the framework of those relationships. Naturally, the Electoral Code was created based on the presumption of reasonability and assumes that a proxy following the work of an election commission on the voting day in any concrete polling station, and not being an immediate bearer of legal relations related to election processes in other polling stations or constituencies, can not dispute results of such, moreover tens of such polling stations.

15. The second sub-Clause of Clause 1 of Art 30 of the Electoral Code establishes that a proxy, an observer, a representative of media has a right to “get familiarized without impediments, with the electoral documents, ballot specimens, decisions of electoral commissions, protocols of the sessions, to receive their copies and to make excerpts. Clause 7 of Art 61 and Clause 8 of Art 62 of the Code also establish that precinct and territorial election commissions, at the request of a candidate proxy or an observer, provide to them copies of corresponding protocols certified by the signature of a chairman or a secretary of the commission and the seal of the commission. Mainly based on this norms, many proxies have requested to present to them copies of voters lists containing signatures of people who have taken part in voting.

In relation to this issue the Constitutional Court finds that the provision to receive copies of documents established in Article 30 of the Electoral Code refers to session protocols and protects the legal position approved in October 2002 by the Council of Europe's “Democracy through law” European Commission’s full session, in accordance to which voter lists already signed and filled by voters are considered one of the elements of secrecy of the ballot and are not subject for publication. However, this does not assume that voter lists may not be examined during verifications performed in accordance with the order prescribed by the law.

16. The RA Electoral Code establishes a 5-day period for territorial election commissions to form summarization protocols after investigating complaints related to voting results of precincts by a given territorial commission or courts. Neither the Code nor the CEC have established a precise order for reviewing complaints addressed to election commissions. This allows for subjective interpretations or biased approach. The Constitutional Court finds that such an order shall be established both for territorial election commissions and for the CEC and shall specify authorized subjects who can file complaints, order and timeframes for receiving, registering and discussing complaints.

In the same time the Constitutional Court takes a record of the fact that within the framework of this case also, the Central Election Commission and some territorial election commissions have interpreted the requirements of the Article 62.10 of the Electoral Code in a unique way and in a number of cases have simply made it impossible to realize a legal demand of a candidate proxy regarding voting results. Constitutional Court’s legal position on this issue is expressed in DCC-408 point 9.

17. The Constitutional Court finds that the dispute presented by the Applicant regarding the issue of creation of a constituency in Nagorno-Karabakh is not a subject for legal position of the Constitutional Court, on one side considering the present status of Nagorno Karabakh, and on the other side in terms of not interfering and not endangering the process of peaceful regulation of this fundamental issue.

Based on the results of the investigation of the case, considering legal positions established by Constitutional Court Decision DCC-408 on March 24, 2003, and based on Article 51, Clause 3 of Article 100 and Article 102 of the Republic of Armenia Constitution, Clause 3 of Article 5, Articles 67 and 68 of the Republic of Armenia Law “On Constitutional Court, the Republic of Armenia the Republic of Armenia Constitutional Court DECIDES:

1. During 2003 RA Presidential Elections in individual precincts, specifically during voting and the vote count, there were such violations, which in their nature are not compatible with future democratic developments of the country. Those violations are incompatible with, in particular the obligations undertaken by the Republic of Armenia in Article 21 of the Universal Declaration of Human Rights, Article 3 of the first protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 25 of the International Covenant on Civil and Political Rights.

2. Considering the evidential facts available in the case, results of the investigation of the case, as well as the judicial practice of the Constitutional Court, from the point of view of clarifying the criteria of approach to similar occurrences while investigating election disputes in the Constitutional Court, to consider pointless the organization of verifications of results weeks after voting in polling stations where:

1. in the same polling station there were found official protocols on election results, which are significantly different from each other;
2. there are legally justified arguments that there were incidents of ballot box stuffing, incorrect vote count, voter impersonation and other significant violations, however where TEC’s rejected in an unjustified manner, and courts of general jurisdiction did not protect in a manner prescribed by the law the rights of the commission members and candidate proxies regarding organization of precinct results verification in time-limits and in an order prescribed by the law.

Considering: the requirement of the Constitution to protect the candidates’ right to be elected and the voters right to elect through free expression of will; the importance of ceasing electoral violations of indicated nature during upcoming Parliamentary elections and in future; as well as the necessity to raise the level of responsibility of bodies and persons involved in organization and conduct of elections, the Constitutional Court during settlement of the election-related dispute considered the results from all polling stations indicated in categories a. and b. above unreliable. Thus, in order to evaluate the impact of unreliable results on the overall results of elections, the total difference in votes cast for candidates shall be reduced by the number of votes cast for the candidate who received more votes in such polling stations.

3. In accordance with the results of the March 5, 2003 elections the results of the following polling stations shall be considered unreliable: 0018, 0444, 0502, 0507, 0508, 0515, 0521, 0538, 0550, 0553, 0748, 0779, 0842, 0865, 1000, 1011, 1065, 1340, 1341, 1361, 1524, 1784, 1262, 1263, 1264, 1266, 1268, 1270, 1253, 0989, 0990, 0736, 0702, 0369, 0363, 0352, 0346, 0347, 0220 and 0225.

4. In order to disclose all persons who committed election falsifications and violations in all indicated polling stations and to hold them accountable as prescribed by law, materials shall be provided to the RA Office of Prosecutor General to organize a complex investigation and inform about the results of such investigation the Constitutional Court and the public before the 20^th of May, 2003. Also, to provide to the RA Office of Prosecutor General documents qualified as false during the investigation of the case in order to determine their authenticity, and in case of those documents being false to hold accountable in accordance with the law those responsible for creating those documents and putting them into circulation.

5. Considering the factual difference in votes for Presidential candidates as per the March 5, 2003 election result, the impact thereon of the size of discrepancies and the results recognized unreliable by the Court as a result of investigation of the case; as well as evaluating the analytical material available in the case; and the impact of duly legally formulated and evidentially justified electoral violations of a qualitative nature on realization of active and passive electoral rights, to keep unchanged the RA CEC Decision 36-A dated March 11, 2003 on electing a President of the RA.

6. Taking into consideration the fact, that the RA Parliament Elections and a Referendum on adoption of the new edition of the Constitution are appointed to be hold on May 25, 2003, each of which separately has a decisive role in ensuring of continuous development of state power in a democratic way;

considering that on the level of constitutional solutions, for institutions of representative democracy, not only the legality of their formation is important, but also important is the large continuous confidence of society in that process and a body of state power;

emphasizing the importance of strengthening the constitutional order of the Republic of Armenia and the necessity for establishing civic harmony established in the Preamble of the Constitution;

stating the fact that in the circumstances of the yet imperfect constitutional democracy, the election dispute, which is of crucial importance for the destiny of the state, also has a deep socio-political context based on lack of confidence and intolerance;

giving high importance to referenda and plebiscites as a special significant form of immediate democracy and realization of people’s power, and of resolving issues of special importance for the state and establishing social confidence and people’s consent;

to suggest to the newly elected RA National Assembly and the RA President, within one year, in the consonance to democracy and rule of law to bring the RA Law “On Referendum” in compliance with the requirements of the first part of unchangeable Article 2 of the RA Constitution and to select the organization of a referendum of confidence as an effective measure to overcome social resistance deepened during the presidential elections.

7. In accordance with part two of Article 102 of the Republic of Armenia Cosnstitution this Decision is final, not a subject for review and shall be enforced from the moment of its publication.

CHAIRMAN OF THE
CONSTITUTIONAL COURT
OF THE REPUBLIC OF ARMENIA G. HARUTYUNYAN

16 April 2003
DCC - 412