Election Observers as an Integral Part of Democratic Elections: The Venice Commission’s Report on Election Observers as Human Rights Defenders

Selin Esen

Selin Esen is Professor of Constitutional Law at Ankara University, Faculty of Law, Türkiye.

The Venice Commission frequently works in the realm of elections. It has adopted opinions and codes of good practice, guidelines, and other documents on elections, electoral procedures, electoral legislation, and referendums since its foundation in 1990. The “Code of Good Practice in Electoral Matters” (Adopted at its 51st Plenary Session (Venice, 5-6 July 2002)) and the “Code of Good Practice on Referendums” [CDL-AD(2007)008rev-cor] are documents in which the Commission delineates the key principles on elections and referendums. The Venice Commission’s Report on Election Observers as Human Rights Defenders [CDL-AD(2024)039], issued in December 2024 at the request of the Secretary General of the Organization of American States (OAS), adds an additional element to the framework of the electoral field.

Human Rights Defenders and Election Observation

The United Nations Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms is the source of the definition of a human rights defender [General Assembly Resolution 53/144, 9 December 1998]. Article 1 of the Declaration states that “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.”  The importance of the role of human rights defenders has grown over the past few decades. In fact, they are essential to the enjoyment and achievement of human rights both domestically and globally. They are deemed critical to protecting justice, rights, and the rule of law by drawing attention to local issues, reframing issues, reinforcing or challenging rights-based norms, spotlighting violations, identifying perpetrators, and disseminating this information to a larger audience [Murdie and Davis, 2012]. The consequence of not protecting human rights defenders is often decreased human rights for all [Wiseberg,1991]. On the other hand, over the last few decades, the activities of and space for human rights defenders in many countries have been severely constrained by legal and extra-legal actions taken against them by states and non-state actors. These actions include murder, violence, threats, harassment, criminalization of their work, illegal surveillance, travel bans, arbitrary arrests, and prosecution [Krain, Murdie, and Beard, 2024]. Furthermore, the enactment of restrictive legislation that diminishes the autonomy of human rights defenders has emerged as a novel global phenomenon, even in established democracies [Swiney, 2019].

The degree of democracy is reflected in the quality of the electoral process. Election observation is one of the means for determining the quality of elections and is increasingly regarded as an essential component of the democratic election process. Election observation is defined as the process by which nonpartisan state and non-state actors gather, arrange, and analyze election-related data in order to produce unbiased, definitive reports that can be used in assessing the entire electoral cycle. Both domestic and international actors observe elections. The nonpartisan nature of the election observation may assure a high level of objectivity and impartiality [Declaration of Principles for International Election Observation and Code of Conduct for International Election Observers (2005)]. While national election observation has a longer history, international election observation is a relatively new phenomenon. Developing countries initiated the practice of inviting observers in order to attract international support for democratic and democratizing governments. The first international election monitoring was conducted in 1962 and the practice grew significantly in the 1980s and 1990s [Hyde, 2011].

The Preamble to the United Nations Declaration of Principles for International Election Observation and Code of Conduct for International Election Observers (2005) states that “International election observation expresses the interest of the international community in the achievement of democratic elections, as part of democratic development, including respect for human rights and the rule of law.” In fact, election observation provides ways for the public to satisfy themselves regarding electoral fairness. It offers a channel of transparency throughout the process to ensure that candidates and the public accept the outcome. Reports on election observation are regarded as reliable and legitimate benchmarks for evaluating election results. Observation promotes democratic values and contributes to the survival of democracy by validating elections. High-quality international observation is associated with higher-quality elections and increased turnover [Kelley, 2012, Ch. 7; Roussias and Ruiz-Rufino, 2018]. Furthermore, the United Nations and other peacebuilding organizations stress the positive role of observation to prevent election-related violence [Matanock, 2018]. The United Nations Special Rapporteurs refer to election observers as “human rights defenders” due to their crucial role.

In its Code of Good Practice in Electoral Matters [CDL-AD(2002)023rev2-cor] and Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organizations and Code of Conduct for Non-Partisan Citizen Election Observers and Monitors [CDL-AD(2012)018], the Venice Commission also emphasizes the importance of election observation.

Election observers, who play a vital role in the legitimacy of election results and the advancement of democracy, however, confront challenges, including harassment, false allegations, defamation, threats, travel restrictions, detention, expulsion, and, in some cases, physical violence. Paragraph 12 of the United Nations Declaration of Principles for International Election Observation and Code of Conduct for International Election Observers outlines some of the prerequisites for successful and reliable international election observation. It ensures that no governmental authority will pressure, threaten, or retaliate against any national or foreign citizen who works for, assists, or provides information to the international election observation mission in accordance with international election observation principles.

Report of the Venice Commission

In this opinion, the Commission sheds light on three matters, namely the fundamental civil and political rights defended by international and nonpartisan citizen observers as human rights defenders; the international instruments that protect electoral observers in their work; and the national legislative framework to acknowledge and guarantee relevant protections for both nonpartisan citizen observers and international observers.

Firstly, the Venice Commission adopts the Committee of Ministers of the Council of Europe’s definition of a human rights defender, which states that “anyone who, individually or with others, acts to protect or promote human rights, regardless of his/her profession or another status, and that national human rights institutions (NHRIs) and civil society organisations working for the protection and promotion of human rights are human rights defenders” [CM/Rec(2018)11]. In fact, the Committee of Ministers construes the concept of “human rights defender” in a broader sense than the United Nations does. The Venice Commission embodies this definition by indicating “persons within NGOs and intergovernmental organisations, but also government officials, civil servants, lawyers, journalists, or members of the private sector” are among the human rights defenders (p. 5).

Secondly, the Venice Commission discusses the place of election observation in the electoral process and protection of the rights and freedoms. In line with its 2012 Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organizations [CDL-AD (2012)018], the Commission states that monitoring and evaluating the electoral process both with international and national nonpartisan citizen observers contributes to improve its transparency. Their work includes assessing the compatibility of national laws with international standards and evaluating the implementation of the national and international legal requirements during the electoral process. According to the Commission, election observers defend not only the rights of voters and candidates but also others, such as journalists, media, other election observers, election administration, and even the judiciary (pp. 7-8). They directly protect the right to vote and run for office, as well as the related civil and political rights, including freedom of assembly, association, movement, expression, the right to access information, access to court and effective remedy, and freedom from discrimination. Given the interrelated nature of human rights, election observers indirectly safeguard other rights and freedoms, such as life, liberty, and security (pp. 11-12).

The Venice Commission recognizes election observers as human rights defenders, following the recent stance of the United Nations, the Council of Europe, and the Inter-American Commission on Human Rights in recognizing election observers as human rights defenders. Thereby, it considers election observers as a “specialized category of human rights defenders” due to the fact that they carry out their efforts to defend and advance human rights in the electoral field (pp.18-19). Unlike other human rights defenders, however, election observers commit to remain impartial and objective and adhere to the principle of non-interference (p. 20). 

In this opinion, the Commission enumerates the rights that human rights defenders are entitled to under the international human rights instruments produced by the Council of Europe and the United Nations. It underscores, in particular, their right to attend public hearings, proceedings, and trials regarding electoral processes, as well as their right to seek, collect, receive, and hold information (p. 19). The Commission stresses that the rights accorded to human rights defenders should also be extended to election observers to the extent that they are consistent with the specific rights and duties that are inherent in election observers’ status and outlined in their specific mandate, especially the duty to maintain impartiality and neutrality. 

Finally, the Commission elucidates rules for non-partisan citizens and international election observers that should be incorporated into national legislation. Above all, legislation should recognize election observers as human rights defenders and define the scope and limits of their rights and responsibilities. Election observation mechanisms on both international and national levels should be legally acknowledged. There should be clear regulations governing the accreditation, invitation, and registration procedures of observers. Election observation should not be complicated by registration requirements.

Legislation should grant rights to election observers to ensure transparency in electoral procedures. Gaining access to information and all persons involved in electoral processes, participating in meetings of the election administration, and following complaints and appeals procedures are all particularly crucial. There should be detailed and unambiguous rules governing proceedings both inside and outside of polling stations. Legislation should recognize the rights of observers related to their tasks and duties, including freedom of expression, issuance of public statements and reports, and holding press conferences. Domestic observers must have freedom of association, the right to report irregularities, and the right to file complaints and appeals. Election observers in member states of the Council of Europe should have effective access to the European Court of Human Rights and other human rights protection mechanisms in their capacity as human rights defenders (pp.22-24). The Commission further emphasizes the positive obligation of states to protect election observers within their jurisdiction and the importance of the impartiality of election management bodies (pp. 24-25).

Concluding Remarks

The Venice Commission is a unique international actor that facilitates a dialogue among governments around the world. The report contributes to the development of the international human rights soft law concerning free and fair elections. The Commission compiles comprehensive reference material for states, institutions, and individuals on election observers. It advises governments on how to align their legislation with the international standards for election observation. Given that the request to draft this opinion came from the Organization of American States (OAS), the standards and principles established by the Commission will have a trans-European impact. 

This report also can be interpreted as the Venice Commission’s reaction to the ongoing global trend towards democratic regression, the decline of international human rights standards, and the weakening commitment to a rules-based system based on transparency, accountability, and the rule of law in the field of elections. This report goes a step further in defining the parameters of democratic elections, establishing that election observation is an essential component of elections by clarifying their status in a democratic order, their fundamental rights as human rights defenders, and the obligations of the states.

The Commission’s approach explicitly renounces the repressive practices against election observers, including violence by governments and non-state actors, as well as legal constraints that deny observers meaningful access to electoral processes. The Venice Commission establishes minimum criteria for election observation and monitoring, ensuring equal rights and protection for all observers. Therefore, even if it is not explicitly addressed, the Commission’s approach inevitably rejects the validation of elections by low-quality election observers who are reluctant or unable to disclose election irregularities when they occur. As a soft law, this opinion will help to enhance national and international law in the field of free and fair elections and improve the legitimacy and efficacy of electoral processes.

This post is part of the IACL Blog series ‘Spotlight on the Venice Commission’.

Selin Esen is Professor of Constitutional Law at Ankara University, Faculty of Law, Türkiye.

Suggested Citation: Selin Esen, ‘Election Observers as an Integral Part of Democratic Elections: The Venice Commission’s Report on Election Observers as Human Rights Defenders’ IACL-AIDC Blog (25 March 2025) Election Observers as an Integral Part of Democratic Elections: The Venice Commission’s Report on Election Observers as Human Rights Defenders — IACL-IADC Blog