C Explanatory memorandum by Ms Yuliya
Lovochkina, rapporteur for opinion
1 Introduction
1. The pandemic crisis has had
a great impact on the functioning of all pillars of democratic institutions, namely
pluralism, rule of law and human rights in Council of Europe member
States. The need to introduce emergency measures aimed at increasing
health safety has become a challenge with a potential to put democratic
processes at risk. Now that following the first wave of the Covid-19
pandemic, the majority of European countries are confronted with
the second wave, it is the right time to draw first conclusions,
take stock of different ways of dealing with the crises and identify
measures which would make it possible to better handle future crises
in the framework of democratic structures.
2. The Parliamentary Assembly’s Monitoring Committee is well
placed to undertake this task. Indeed, it is important, while assessing
the response given to the emergency in different countries, to take
into account their specific political and legal contexts. The same
measures may be considered as very controversial in one country
and fully acceptable in another, depending on the presence or lack
of political consensus, confrontational policies and past experiences.
3. Obviously, the above comment can by no means be interpreted
as to justify any violation of our principles and norms on the pretext
of “internal consensus”. However, in the absence of fully encompassing internationally
recognised democratic standards in the area, the assessment of compliance
with Council of Europe values and principles has to be done – to
some extent – on an individual basis. This is the field of competence
of the Monitoring Committee, which on a permanent basis follows
the situation in member States with regard to conformity with their
commitments and obligations.
4. In addition to the 11 countries which are under the full monitoring
procedure, there are three countries engaged in the post-monitoring
dialogue. As a result of the committee’s recent reflection on its
working methods, and the change in the format and selection of countries
for periodic reviews, all Council of Europe member States are now
subject to periodic comparable monitoring scrutiny. This will enable
the Monitoring Committee to have an overview of different solutions
all over Europe.
5. It is important to elaborate common harmonised assessment
criteria and the committee intends to reflect on this. It has already
agreed to devote one chapter in all forthcoming reports – be it
full monitoring or post-monitoring reports or periodic reviews –
on the ways that a given country handled the crisis as regards the functioning
of democratic institutions and the measures taken in that respect.
6. That said, the committee stresses the need for the elaboration
of democratic standards wherever appropriate which would guide the
countries confronted with possible future crises without putting
the democratic acquis in Council of Europe member States at risk.
In this context, the committee welcomes the work done so far by
the various Council of Europe entities and in particular, the toolkit
offering guidance to member States on “Respecting democracy, rule
of law and human rights in the framework of the Covid-19 sanitary
crisis”, issued by the Secretary General in April 2020.
7. The remarks below are of a general nature aimed at drawing
attention to some important issues which will have to be taken into
account in future monitoring reports.
2 Functioning of
democratic institutions in times of crisis
8. A cursory overview obtained
from the different hearings organised by the committee has made
clear the vastly different legal and constitutional avenues taken
by the individual member States in response to the pandemic and
aimed at ensuring the proper functioning of their democratic institutions
under pandemic conditions. Some countries declared a full state
of emergency (for example Estonia, Serbia), others applied different
forms of sanitary emergency (Poland, Spain), while others regulated
their response using emergency public order ordinances (Malta, the
Netherlands). In many cases this also reflects the rapidly evolving pandemic
for which member States had little time to prepare. In some member
States with more polarised political climates, including from forthcoming
elections, this led to increased political tensions which in turn affected
the public acceptance of some of the emergency measures.
9. The importance for all member States to develop now, on the
basis of a wide consensus among all political stakeholders, an adequate
constitutional and legal framework to deal with global health emergency situations
in line with Council of Europe standards and their membership obligations,
cannot be emphasised enough. The Monitoring Committee is best equipped
to follow progress in this respect and to develop a common approach
and define criteria based on Council of Europe democratic standards
which would allow for harmonised evaluation of emergency solutions
applied in different countries while taking into consideration their
specific national contexts.
10. While it is understood that the massive scale sanitary crisis
that many Council of Europe countries have experienced and in many
cases continue to experience, did not allow for the regular functioning
of democratic institutions, one has to stress the need to maintain
democratic safeguards and in particular a system of checks and balances.
In other words, measures introduced with a view to securing public
health cannot undermine the democratic mechanisms and processes
which constitute the acquis of Council of Europe members States.
11. In this context, I fully agree with Mr Liddell-Grainger that
the continuity of legitimate democratic institutions is of key importance
during times of emergency and checks and balances must be maintained
and that any state of emergency, and the extraordinary powers it
confers must be limited in duration, circumstances and scope. The
situation when the government has unfettered power without checks
and balances is dangerous for the constitutional and legal order
and could result in a considerable number of appeals to constitutional
courts. Increased powers of the executive and suspension of certain
rights and freedoms such as freedom of movement are only acceptable
as long as they are lawful, limited in time, proportional to emergency
requirements, and controlled by the legislative, In particular,
any prolongation of a state of emergency should be subjected to
the review of its necessity by parliament. In the Monitoring Committee’s future
work, these criteria will be used to assess compliance by our member
States with democratic standards.
12. I also fully share the position of Mr Liddell-Grainger that
parliaments must continue to play a triple role of representation,
legislation and oversight during any state of emergency.
13. Any legislation enacted by the executive during a state of
emergency or as a result of lawful derogation increasing the executive’s
powers, should also include clear time limits on the duration of
exceptional measures. The rapporteurs of the Monitoring Committee
will examine whether all the restrictive emergency measures have
been repealed once the emergency has expired.
14. The Monitoring Committee will also try to determine whether
the principle of necessity and proportionality has been observed
in specific countries, in other words whether derogation from normal
rules and procedures of the democratic decision-making process has
not been abused. It should be pointed out that, as a general rule,
fundamental legal reforms should be put on hold during a state of
emergency.
15. I share Mr Liddell-Grainger’s conviction that parliamentary
scrutiny of the executive remains of key importance. The respective
monitoring rapporteurs will pay particular attention to the way
it was exercised in the countries under their responsibility.
16. It should be stressed however, that in order to be able to
properly exercise its oversight function, a legislative body must
be considered legitimate. In this context, the question of elections
in all aspects of the electoral campaign and on voting day during
emergency situations arises. I will look into this issue in more detail
in the next chapter.
17. The Monitoring Committee will certainly examine to what extent
the judiciary was operational during the crisis in specific countries.
In particular it is important to see whether courts were able to
examine the most serious and controversial human rights restrictions
and whether constitutional courts – where they exist – were not
prevented from functioning.
3 Elections under
emergency conditions
18. In his explanatory memorandum,
Mr Liddell-Grainger succinctly outlines the different concerns and aspects
with regard to the holding of elections in a context of pandemic
and other emergency situations. I share his findings and reflections
and will limit myself to a small number of additional observations,
which largely follow the points made under the previous section
on the functioning of democratic institutions.
19. Democratic elections are the cornerstone of a representative
democracy and ensure the democratic legitimacy of the parliamentary
institutions. As highlighted in each monitoring procedure, the genuinely democratic
nature of an election is determined not only by the conduct of the
vote on election day but equally by the pre-electoral political
environment and the existence of an equal playing field for all
electoral contestants to campaign. All these aspects are affected
in an emergency and therefore, as a rule, elections should not be organised
under such conditions.
20. However, at the same time, given the importance of parliaments
as “guarantors of democracy in times of crisis”, as the rapporteur
of the Committee on Political Affairs and Democracy rightfully states,
it is important that the legitimacy of the parliament and its functions
cannot be questioned. Therefore, in the context of a potentially
long emergency period caused by a global pandemic, the organisation
of elections, under strict and narrowly defined criteria and conditions
to ensure their democratic nature, could be considered. This is especially
of relevance when elections were already called for before the emergency
arose.
21. A number of member States were confronted with this situation
when the Covid-19 pandemic broke out, and their different reactions
to this situation should be carefully analysed for lessons to be
learned for similar future situations. For that purpose, the Monitoring
Committee organised a hearing on “Membership obligations and the
conduct of democratic elections in the context of the pandemic of
Covid-19” which took place on 22 June with the participation of inter alia the Venice Commission.
This hearing focused on three distinct case studies: Poland, North
Macedonia and France.
22. In the case of Poland, the presidential election had already
been called for 10 May 2020, before the outbreak of the Covid-19
pandemic. In the context of the highly polarised political climate
in Poland no agreement could be reached between the ruling majority
and the opposition about postponing the election or the conditions
and criteria under which it could continue to take place. Initially
the authorities stated that they wished to maintain the election
on 10 May, a position that became increasingly more contentious
and controversial given the risk for public health and safety of
maintaining the election, as well as the fact that, as a result
of the confinement measures in place, no meaningful election campaign
could take place which led to an increasingly skewed and unequal
playing field for the election contestants. As a result of the increasing controversy
about the election, it was finally postponed by the authorities
two days before they were to take place. However, the legal basis
for this decision, which was based neither on a wide political agreement
nor on a formal decision of the parliament, is questionable and
could have led to legal challenges were it not for the fact that
a consensual agreement was reached between the ruling majority and
the opposition on the new dates for the election as well as on the
manner and conditions in which it would be conducted. The presidential election
eventually took place on 28 June and 12 July 2020. Being a member
of the Parliamentary Assembly’s election assessment mission during
the first and second rounds of the presidential election in Poland,
I would like to point out that despite the above-mentioned deficiencies
the election were well-organised.
23. In North Macedonia early parliamentary elections had been
called for on 19 April 2020 following the dissolution of the parliament
on 16 February 2020. However, in a consensual decision between the
opposition and the ruling majority these elections were postponed
as a result of the Covid-19 pandemic. It was agreed that the election
campaign could only take place after the state of emergency had
been lifted. This took place on 23 June 2020 and elections were
eventually organised on 15 July 2020.
24. France controversially held the first round of its local elections
on 15 March 2020. The second round was originally planned for 22
March but was postponed sine die due
to the rapidly developing Covid-19 health crisis, as well as what,
for France, was a very low turnout during the first round as a result
of the evolving pandemic. The second round eventually took place
on 28 June 2020, after the confinement measures to contain the spread
of the coronavirus had been lifted. All decisions regarding these
elections – the holding of the first round, the postponement of
the second round, as well as the new date for the second round –
were based on consultation and consensus among the political stakeholders
and guided by advice from the French Scientific Council. These decisions
were therefore supported by French society, even if questions remain
about the impact and political consequences of the long delay between
the first and second rounds.
25. While an in-depth analysis of these case studies is beyond
the scope of this opinion, two important observations should be
made.
26. First of all, in many countries the legal framework for the
postponement of already called elections when a state of emergency
is not declared is inadequate or even lacking, especially when there
is no consensus among the political stakeholders about the postponement
of the elections. This issue has already been observed outside pandemic
conditions within the ongoing monitoring procedures, most recently
with regard to the 2019 local elections in Albania (see Venice Commission
Opinion
959/2019 on “the powers of the President [of Albania] to set
the dates of elections”).
27. Secondly, consensus between all stakeholders with regard to
the conditions and criteria for the possible postponement of an
election, as well as the conditions and special measures that need
to be in place for their conduct under emergency circumstances,
is essential for public acceptance and trust in the democratic nature of
the elections. Such consensus is understandably more difficult to
obtain in the highly competitive political climate that exists before
elections, especially if the political environment is very polarised.
28. All member States should therefore be urged to ensure that,
based on consensus between all political stakeholders, an adequate
legal framework is adopted that provides clear conditions and criteria
for the postponement of elections, as well as for the conditions
and mechanism under which elections can eventually be held in pandemic
situations. By doing so member States will also fully comply with
the principle of stability of electoral legislation, which stipulates
that election legislation should not be changed six months before elections
are called.
29. In this context the rapporteur wishes to stress that, while
the conduct of elections under emergency conditions may be necessary
to ensure the continuing legitimacy of the democratic institutions
and their work, the conduct of referenda and plebiscites is not
permissible, especially when they deal with Constitutional matters.
A point in case is the so-called “All-Russian Vote” on the controversial
amendments to the Constitution of the Russian Federation. Originally
scheduled for 22 April, the “All-Russian Vote” was postponed until
1 July 2020 as a result of the Covid-19 pandemic. Several novel,
and controversial, mechanisms were introduced to conduct the vote
under pandemic conditions. In-person voting was allowed to take
place over multiple days, from 25 June to 1 July 2020. In addition,
during this period, makeshift polling stations were set up in parks
and public spaces that did not fulfil the criteria for a polling
station. These mechanisms affected the observation of the vote as
well as the secrecy of the ballot, raising questions about, and
affecting public trust in the voting process and outcome of the
vote. This in turn negatively affects the democratic legitimacy
of the Constitutional amendments which, inter
alia, profoundly change the structure and balance of
power in the Russian Federation.
30. The rapporteur of the Committee on Political Affairs and Democracy
rightfully raises the importance of impartial international observation
of elections, such as conducted by the Assembly, to assess the democratic nature
of elections and increase the public trust in the results. The consequences
of non-observation of elections by the Assembly, should the travel
restrictions continue, should be considered. Indeed, some countries
may feel tempted to reject any possible criticism of the electoral
process because of the lack of observation by international monitors.
31. At the same time, it should be emphasised that a number of
measures implemented to allow elections under pandemic conditions,
such as increased use of postal and internet voting, lessen the
impact and effectiveness of the observation of the voting on election
day. This development strengthens the importance of the long-term
observation of election preparation and the political environment
in which elections take place, which have been, and continue to
be, important areas of attention of the Monitoring Committee. The
Assembly should explore the possibilities of strengthening its long-term
election observation capacities using the competence and tools offered
by the Monitoring Committee and its rapporteurs.
4 Anticipating
future crises
32. In the previous chapters I
have outlined the main issues which will be examined by the monitoring rapporteurs
in the respective countries under their responsibility, as well
as the concerns to be addressed. For obvious reasons these are just
general ideas which will be further reflected upon and developed
by the Monitoring Committee and its rapporteurs.
33. As mentioned above, the pandemic crisis caught many countries
unprepared for this kind of challenge. In this context, I would
like to commend the Secretary General of the Council of Europe for
having reacted swiftly by issuing a toolkit offering guidance to
member States with regard to respecting democracy, the rule of law
and human rights in the framework of the Covid-19 crisis. The contribution
by other Council of Europe bodies, in particular the Parliamentary
Assembly, the Committee of Ministers and the Venice Commission was also
most valuable.
34. However, there is still a need to elaborate democratic standards
which would serve as a reference and guidance for Council of Europe
member States should another emergency arrive. Once democratic standards in
this area are clearly defined, the Monitoring Committee will follow
their implementation and, more generally, member States’ efforts
to introduce specific legislative measures which will allow for
better handling of similar crises in the future.
35. In this context the present parliamentary debate is a welcome
first step in the pan-European debate on improved safeguards for
the democratic process in any conditions.
36. In more general terms, I think that international parliamentary
bodies including the Parliamentary Assembly, should also work out
methods and procedures which would enable proper functioning, including monitoring
during any possible future crises.
37. That said, I would like to stress that the work of the Monitoring
Committee and its rapporteurs has not been suspended during the
pandemic crisis. In particular, they were closely following developments
in their respective countries and made public statements where appropriate.
In several cases, they communicated with the authorities and held
exchanges of views with different stakeholders via videoconference.
