Introduction

This article examines the right to vote from abroad by focusing on the case of Albania, which does not provide for out-of-country voting. It argues a progressive affirmation of the right to vote from abroad, which requires Albania and other countries to undertake positive measures to organize inclusive and democratic elections that ensure wide participation and free expression of the opinion of the people. With 40% of its citizens residing abroad, this article argues that Albania should allow for voting by mail, electronically, provide polling stations in embassies and consulates, or other methods that ensure inclusive democratic elections.[1]

Background

With a resident population of 2.8 million there are around 3.5 million registered voters in Albania.[2] This is a clear sign that Albania has a large number of emigrants registered in voters’ lists. In fact, about 40% of the country’s population resides abroad.[3] For instance, around 455,468 Albanian migrants reside in Italy, 429,428 live in Greece and 90,381 in the United States.[4]

About 1.2 million Albanian registered voters can not exercise their right to vote from abroad.[5] Thus, Albanian migrants have to travel back home on voting day in order to participate in elections.[6] Currently, Albania does not provide for the possibility to vote by mail, in diplomatic representations around the world, or electronically.[7] Consequently, the “exclusion” of about 35.6% of voters due to their physical presence out of the country, significantly affects the outcome of the elections.[8] Others argued that migrants lose their ties with their country of origin and therefore should not be entitled to vote from abroad.[9] However, remittances at 8.8% of the gross domestic product (GDP) indicate that Albanian migrants have a significant contribution in the economy of the country.[10] While GDP per capita is about 4,100 United States Dollars (USD), each Albanian emigrant sent about 916 USD.[11] However, despite their contribution, Albanian migrants are not given the possibility to vote from abroad.

Analysis

The right to vote in Albania is entrenched in the Constitution.[12] Albania is party to the Council of Europe, which recognizes the right to vote in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).[13] The European Court of Human Rights (European Court) noted that the right to vote requires states to take positive measures as opposed to merely refraining from interference.[14] The Parliamentary Assembly of the Council of Europe invited states to enable their citizens living abroad to vote during national elections.[15]

A step back in affirming the right to vote from abroad was taken by the European Court’s Grand Chamber in Sitaropoulos.[16] The Court overruled the decision of the Chamber and denied the claim brought by Greek citizens requesting to vote in parliamentary elections while residing abroad.[17] While the Court acknowledged that thirty-seven members of the Council of Europe made arrangements for voting from abroad, it emphasized that these procedures were not uniform, i.e. polling stations set up abroad, postal voting, proxy voting, and electronic voting.[18] Hence, it affirmed that states were not required to provide for measures that allow their citizens to vote from abroad.[19] The Court’s ambiguous reasoning focused on the diversity of arrangements rather than on the fact that with diverse arrangements, states enabled their citizens to vote from abroad. However, the Court noted that a democratic state “must” be in favor of inclusion and measures that allow the exercise of the right to vote from abroad are “consonant” with the European Convention.[20]

The United Nations Human Rights Committee noted that states must take effective measures to ensure that all persons entitled to vote are able to exercise that right.[21] The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) envisages the right to vote for migrant workers and members of their families in their state of origin.[22] Consequently, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) stressed the importance of ensuring the right to vote from abroad.[23] In 2010, the CMW expressed concern that Albanian emigrants could not exercise their vote from abroad and that this negatively affected the exercise of the right to vote.[24] Hence, the CWM recommended measures that ensure the exercise of the right to vote by Albanian migrant workers residing abroad.[25] Yet, no measures have been adopted by Albanian authorities to allow its citizens to vote from abroad.

Conclusions

Albanians residing abroad have been de facto excluded from electoral participation over the last few decades. With almost half of its population living abroad, the responsible Albanian state authorities are under an obligation to preserve the raison d’être of the right to vote by adopting positive measures to hold inclusive democratic elections.[26]

While the European Court noted that states are not required to adopt positive measures to allow their citizens to vote from abroad, it underlined the importance of adopting such inclusive measures.[27] Currently, 40 out of 47 members of the Council of Europe have adopted measures that regulate the exercise of the right to vote from abroad.[28] Even though there is no uniformity among these arrangements, certainly they share the same aim of inclusion by allowing citizens living abroad to participate in the electoral process. These arrangements go in line with the resolutions and recommendations of the Parliamentary Assembly of the Council of Europe as well as with the recommendation of the Venice Commission.[29] Additionally, these arrangements are in line with international instruments that require the adoption of positive measures enabling the effective enjoyment of rights.[30]

Therefore, considering the progressive affirmation of the right to vote from abroad and in particular in the framework of the Council of Europe, Albanian authorities should undertake the necessary measures to enable their citizens to vote from abroad.[31] Within the given margin of appreciation in determining proper arrangements, consideration should be given to voting by mail, electronically, establishing polling stations in embassies and consulates, or other methods that ensure inclusive democratic elections.


[1] See infra note 3.

[2] See infra notes 3 and 5.

[3] See Albanian Institute of Statistics, Population of Albania 2017 (indicating that the resident population in Albania was 2,876,591 in January 2017). See also United Nations, Department of Economic and Social Affairs, Trends in International Migrant Stock: The 2017 revision (indicating that there are about 1,148,144 Albanian migrants around the world).

[4] Id.

[5] See Central Electoral Commission of Albania, 2017 Parliamentary Elections (indicating that the total number of registered voters was 3,452,324). See also Albanian Institute of Statistics, Population of Albania 2017(indicating that the resident population in January 2017 was 2,876,591, out of which it is estimated that around 2,221,920 were older than 18 years old and therefore had the right to vote). Consequently, it is estimated that around 1,230,404 voters were registered in the voters’ lists but resided abroad on voting day. These estimates and do not include factors such as immigrants residing in Albania during 2017 (around 20 thousand) or Albanian citizens found incapable to act, including to vote, by a final court decision.

[6] See Article 105 of the Electoral Code of Albania.

[7] Id.

[8] See Albanian National Strategy on Migration and National Action Plan on Migration, 11 (2005).

[9] See Sitaropoulos and Giakoumopoulos v. Greece, App. No. 42202/07 Eur. Ct. H.R. 17-18 (2012) (decision of the Grand Chamber) [hereinafter Sitaropoulos 2012] (where the Greek government also noted that the recognition of this right could give rise to political and economic problems).

[10] See World Bank, Personal Remittances 2018 (referring to 2016 data). See also Luljeta Ikonomi, International Organization for Migration, E Drejta Migratore (Migration Legislation), (Emirjon Kaçaj ed., 2d ed. 2011) (providing more information on Albanian migration).

[11] See World Bank, GDP Albania (2016).

[12] See Article 45 of the Albanian Constitution (providing that Albanian citizens who have reached the age of 18 have the right to vote and to be elected).

[13] See Article 3 of the Protocol 1 of the European Convention [hereinafter Article 3 of Protocol 1].

[14] See Mathieu-Mohin and Clerfayt v. Belgium, App. No. 9267/18 Eur. Ct. H.R. 16-17 (1987).

[15] See Parliamentary Assembly of the Council of Europe: Abolition of restrictions on the right to vote, Resolution 1459 at 1 (2005). See also Parliamentary Assembly of the Council of Europe: Engaging European diasporas, Resolution 1696 at 3 (2009). See also Parliamentary Assembly of the Council of Europe: Democratic participation for migrant diasporas, Resolution 2043 at 2 (2015). But see Venice Commission, Report on Electoral Law and Electoral Administration in Europe, Study No. 352/2005 at 13 (2006) (indicating that at the current state the European electoral heritage do not require the introduction of such a right). See also Venice Commission, Report on Out-of-Country Voting, Study No. 580/2010 at 15 (2011) (recommending to the adoption of positive measures to the right to vote of citizens living abroad).

[16] See Sitaropoulos 2012 at 25.

[17] Id. But see Sitaropoulos and Others v. Greece, App. No. 42202/07 Eur. Ct. H.R. 2 (2010) (decision of the Chamber) [hereinafter Sitaropoulos 2010].

[18] See Sitaropoulos 2012 at 23

[19] Id. at 22.

[20] See Sitaropoulos 2012 at 22.

[21] U.N. Human Rights Committee, The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25), General Comment No. 25, (Fifty-seventh session, 1996), U.N. Doc. CCPR/C/21/Rev.1/Add.7 at 5 (1996).

[22] See Article 41 of the ICMW.

[23] See also CMW Concluding Observations for Nicaragua, U.N. Doc. CMW/C/NIC/CO/1 at 9 (2016); CMW Concluding Observation for Mauritania, U.N. Doc. CMW/C/MRT/CO/1 at 9 (2016) and CMW Concluding Observation for Turkey, U.N. Doc. CMW/C/TUR/CO/1 at 2 (2016).

[24] See CMW, Concluding Observations on the Second Periodic Report of Albania, U.N. Doc. CMW/C/ALB/CO/1 at 5 (2010).

[25] See CMW, Concluding Observations on the Second Periodic Report of Albania, U.N. Doc. CMW/C/ALB/CO/1 at 5 (2010). See also François Crépeau (Special Rapporteur on the human rights of migrants), Rep. on Mission to Albania, ¶ 72, U.N. Doc. A/HRC/20/24/Add.1 (Apr. 10, 2012).

[26] See Sitaropoulos 2012 at 22 (where the Grand Chamber noted that states “must” be in favor of inclusion and measures that allow expatriates to vote from abroad are “consonant” with Article 3 of Protocol 1 on the right to vote).

[27] Id.

[28] In Sitaropoulos, the Grand Chamber mentioned nine member States of the Council of Europe, in addition to Greece, that did not provide for voting from abroad: Albania, Andorra, Armenia, Azerbaijan, Cyprus, Ireland (voting from abroad allowed only to civil and military servants and their families), Malta, Montenegro and San Marino. See Sitaropoulos 2012 at 13. However, during the past years Andorra, Azerbaijan (in the context of presidential elections) and Cyprus have made arrangements in this regard. See OSCE/ODIHR Needs Assessment Mission Report for Andorra at 5 (2015). See also OSCE/ODIHR Election Observation Mission Final Report for Azerbaijan at 9 (2013). See also OSCE/ODIHR Needs Assessment Mission Report for Cyprus at 5 (2016).

For the purpose of this article, Armenia was not counted in the list of countries with arrangements allowing their citizens to vote from abroad as electronic voting from abroad is solely provided for diplomatic and military staff posted abroad and their family members (similar to Ireland). See OSCE/ODIHR Needs Assessment Mission Report for Armenia at 6 (2016).

[29] See supra note 14.

[30] See supra note 20. See also Article 41 of the ICMW providing for the right to vote for migrant workers and members of their families in their state of origin.

[31] See European Parliament Resolution of Feb. 15, 2017 on the 2016 Commission Report on Albania (2016/2312(INI)) at 4 (encouraging Albania to take measures to facilitate the possibility for Albanian citizens residing abroad to vote in Albanian elections outside the country).