Smoke, mirrors, and the joker in the pack: on transitioning to democracy and the rule of law in post-Soviet Armenia.

The next national elections, the May 1998 National Assembly elections, brought a parliamentary majority to Karen Demirchian and Vazgen Sargsian, positioning them to challenge the authority of President Kocharian. (128) Some months after those elections, the political assassinations described in Part II were perpetrated in the Parliament. The confusion and power vacuum created by the killings gave President Kocharian the opportunity to begin the accumulation of power in the Executive branch of Armenia. (129)

1. The 2003 Elections

In February through March and May of 2003, Armenia held its third presidential and fourth parliamentary elections since independence from the Soviet Union in 1991. (130) The first round of voting in the presidential elections was held on February 19, 2003. (131) As required under Armenian law, a second round of voting was scheduled since none of the nine candidates had received the "50% plus one votes" (132) mandated by the Electoral Code. (133) Following accusations of election falsification, (134) mass demonstrations, and arrests of opposition supporters, (135) the second round of the elections was held on March 5, 2003. (136) The incumbent, President Robert Kocharian, was declared the decisive victor, with 67.5% of votes cast. (137)

The elections were held in the context of concentrated reform and support efforts by the international community, including the U.S. government through the U.S. Agency for International Development (USAID) and its contractors. (138) In 2002-2003, a total of $22.4 million of aid from the United States was directed toward the municipal, presidential, and National Assembly elections of 2002-2003. (139) Other donors included Armenia's European neighbors, through the offices of the Council of Europe and the OSCE. (140)

The efforts of the international community to help foster free and fair elections included millions of dollars of assistance, in the form of, inter alia, technology transfers, monitoring of and assistance to the media, and trainings of election officials and the Judiciary in preparation for the elections, media monitoring, and assistance. (141) Nevertheless, the elections failed to meet international standards, (142) and raised serious doubts regarding the validity of the proceedings and their official results. In both the parliamentary and presidential elections of 2003, the OSCE/ODIHR election observation missions (143) opined that the conduct of the proceedings did not meet international standards. Despite this commitment of resources and conventional perception of the Republic as a beacon of democracy and economic progress, the 2003 Armenian elections were neither free nor fair, (144) evidencing instead a well-thought-out and coordinated subversion of the democratic process.

2. Referenda

In addition to elections for public office, since its independence from the Soviet Union, Armenia has held three referenda. Through the constitutional referendum of 1995, the Armenian people approved the Republic's first post-Soviet Constitution. (145) The second referendum on the Constitution, held in tandem with the parliamentary elections of 2003, did not receive voter approval for the proposed constitutional amendments. (146) Finally, the contested results of the 2005 constitutional referendum, according to the administration, confirmed the populace's approval for the proposed constitutional reforms. (147)

C. Post-Soviet Elections Violation Trends

A review of the OSCE/ODIHR final election reports issued after the 1996, 1998, 1999, and 2003 elections reveal recurring trends in Armenian electoral violations. This analysis will highlight a number of the more fundamental defects in the conduct of the elections that undermine the freedom and fairness of the Armenian electoral process as observed by the OSCE/ODIHR.

1. Access to Media:

In its 1996 Presidential Elections Report, the OSCE/ODIHR mission noted that the incumbent President received the lion's share of electronic media coverage, and that the vast majority of such coverage was favorable. (148) The report noted with concern that the state of the media in Armenia, and the economic circumstances of the majority of its citizens, created a heavy reliance by voters on electronic media for information about the elections and candidates, as only electronic media provided nationwide coverage. (149) The state television station, in defiance of electoral laws and regulations, did not provide equal coverage of all candidates. (150)

The failure of media outlets to adhere to Armenian electoral law and the discriminatory nature of coverage continued to be a significant problem during the presidential and National Assembly elections in 1998, 1999 and 2003. (151)

2. Voter Lists

The observer mission in 1996 pointed to the inadequacy of the voter lists, the lack of coordination and the lack of transparency in their production, and their overall inaccuracy, as important elements in the conduct of Armenia's elections. (152) Nevertheless, throughout the ensuing OSCE/ODIHR reports, covering elections in 1998, 1999, and 2003, the flaws in the voter lists continued to bedevil the conduct of elections in Armenia. (153) The most serious allegations were the inclusion of the deceased and nonresident, the removal of current residents, and the failure to post lists at polling stations prior to elections, as required by the election laws. (154)

3. Military Voting

The 1996 report noted observations of voting by military units where soldiers were brought to polling stations, instructed on the substance of their vote, and subjected to open voting in view of their commanding officers. (155) Similar observations were made in the majority of subsequent Armenia election reports. (156)

4. Ballot Stuffing

Allegations and direct observations of ballot stuffing (157) were included in the 1996 report of the OSCE/ODIHR. (158) Similar allegations, varying only with respect to scope and frequency of the occurrence of the reported activity, appear in most of the subsequent election reports. (159)

5. Flaws in Counting and Vote Verification

Among the flaws observed in the counting of ballots, the 1996 election observer teams reported: failure to conduct the count in accordance with Armenia's Electoral Code, discrepancies among the number of ballots received by individual polling stations, the total number of ballots reported by the polling stations, and the final count of registered voters released by the Armenian Central Electoral Commission (ACEC). (160) Similar flaws were reported in each of the subsequent Armenian election reports. (161)

6. Presence of Unauthorized Persons in Polling Stations

The 1996 report of the OSCE/ODIHR recounts the presence in polling stations of a large number of unauthorized persons, including military or law enforcement personnel and representatives of the Ministry of Interior, among others. (162) The report noted the danger of intimidation of voters and recommended that this problem be addressed. (163) Nevertheless, intimidation of voters and the presence of unauthorized persons in polling stations during Armenian elections and election campaigns continued to recur in all subsequent elections in the Republic. (164)

Other apparent trends in the shortcomings reported surrounding the conduct of a majority of the post-Soviet Armenian elections, particularly the presidential elections, include the co-opting of state resources to the election campaign of the incumbent administration, (165) intimidation, and violence directed toward opposition candidates and members of the public, (166) and lack of security of ballots or ballot boxes, (167) such that ballots are openly and illegally circulated outside polling stations during the conduct of the elections. (168)

D. Theatrical Non-Reform Reform?

The ongoing nature of these flaws notwithstanding, Armenia undertook a number of overt initiatives to combat the defects in the conduct of its elections.

1. The Electoral Code

The first example of such initiatives is the promulgation of a wide-ranging Electoral Code, enacted and first employed in the 1999 National Assembly elections and amended for the 2003 elections. (169) The Electoral Code replaced the 1996 Law of the Republic of Armenia on the Election of the President of the Republic of Armenia and the 1996 Law of the Republic of Armenia on the Effects of Local Self-Governing Bodies. (170) The enactment of the Electoral Code and its subsequent amendment were both greeted with approval by the OSCE Election Observation Missions. (171)

2. Armenian Voter Lists

Second, in preparation for the 1999 National Assembly elections, the United Nations Development Program (UNDP) initiated a wide-ranging program to clean up and clarify the Armenian voter list. (172) Nevertheless, the voter lists continued to be generated by local authorities, with little or no coordination, resulting in the absence of a master voter list from which duplication could be verified. (173)

3. The Law on Television and Radio Broadcasting

Finally, the Law on Television and Radio Broadcasting, was adopted for the 2003 elections. (174) Article 28 of the new media law mandates impartial and equal access of electoral candidates to state media outlets. (175) In addition, several provisions of the Electoral Code require equality of media access for all candidates. (176) Both legislative efforts constitute significant improvements over preexisting laws.

4. Memoranda of Understanding