(Application no. 37700/05)
3 December 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Seyidzade v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 12 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“[The CEC], having examined the complaint of Miraziz Mirasgar oglu Seyidzade, who has nominated himself for election to the Milli Majlis ..., in accordance with Articles 19.4, 19.14, 28.4 and 112.9 of the Electoral Code and Articles 3.5 and 3.6 of the Law of 27 May 2003 on the approval and entry into force of the Electoral Code, decides:
To reject the complaint of Miraziz Mirasgar oglu Seyidzade as unsubstantiated.”
“According to the materials in the case file, Miraziz Mirasgar oglu Seyidzade, who has nominated himself for election to the Milli Majlis, is a clergyman.
According to Article 56 of the Constitution of the Republic of Azerbaijan, the right of clergymen ... to participate in elections may be restricted.
According to the requirements of Article 14.2.4 of the Electoral Code of the Republic of Azerbaijan, clergymen may not serve as members of the Milli Majlis while they are engaged in professional religious activity.
The applicant’s arguments that he had been relieved of his positions with the Caucasus Muslims Board and Baku Islamic University cannot be considered as a ground for upholding his claim.
Specifically, the fact that [the applicant] has been relieved of the above-mentioned positions does not rule out his engaging in professional religious activity.
On the other hand, according to Article 85 of the Constitution of the Republic of Azerbaijan, a clergyman may not be elected as a member of the Milli Majlis.
Accordingly, given that the decision of the Central Electoral Commission was in compliance with the requirements of the Constitution and the Electoral Code of the Republic of Azerbaijan, the arguments advanced in the applicant’s appeal cannot be considered as a basis for quashing this decision.”
“According to Article 7 (I) of the Constitution, the Republic of Azerbaijan is a democratic, secular, unitary republic governed by the rule of law. Article 18 (I) of the Constitution provides that religion shall be separate from the State. In this context, the above provisions must inevitably be taken into account in the constitutional rules on formation of the supreme elected government body.
The restriction on the election of clergymen to government bodies, which is based on the demands of the public interest, has the primary aim of separating religion from the State. The restriction serves the purposes of removing matters inherent in the State’s functioning from the sphere of influence of religious communities, clerics and religious figures, and keeping such influence to a minimum.
Another aim of the restriction is to separate religious voters from the clergy in the context of the election process, as a means to ensure that voters form their opinions and make their choice free from any undue interference.
It must be noted that the legal systems of a number of other States also provide for restrictions on the right of clergymen to stand for election. ...
Article 14.2.4 of the Electoral Code provides that clergymen cannot be members of the Milli Majlis, President of the Republic, or members of municipalities while they are engaged in professional religious activity. As such, the legislator applied the “religious-based eligibility requirement” restricting clergymen’s right to serve as members of parliament only to periods when the latter are engaged in professional religious activity.”
II. RELEVANT DOMESTIC LAW
A. Constitution of the Republic of Azerbaijan of 1995
Article 7 Azerbaijani State
“I. The Azerbaijani State is a democratic, secular, unitary republic governed by the rule of law. ...”
Article 18 Religion and State
“I. Religion is separated from the State in the Republic of Azerbaijan. All religious faiths shall be equal before the law.
II. The spreading and proselytising of religions which undermine human dignity and contradict the principles of humanism shall be prohibited.
III. The State education system shall be secular.”
Article 56 Electoral rights
“I. Citizens of the Republic of Azerbaijan shall have the right to elect and be elected to the institutions of government, and to participate in referendums.
II. Persons whose legal incapacity has been determined by a court decision shall not have the right to participate in elections and referendums.
III. Members of the armed forces, judges, State officials, clergymen (din xadimləri), persons imprisoned pursuant to a final court judgment, and other persons specified in this Constitution and in legislation may be subject by law to restrictions on their right to participate in elections.”
Article 85 Requirements for candidates for election to the Milli Majlis of the Republic of Azerbaijan
“I. Every citizen of the Republic of Azerbaijan not younger than 25 years of age may be elected as a member of the Milli Majlis ... in a manner stipulated by law.
II. Persons who have dual citizenship, those who have obligations vis-à-vis other States, those who work within the system of the executive or judicial power and those who carry out any other types of remunerated activity except scientific, pedagogical or creative activities, clergymen (din xadimləri), persons whose legal incapacity has been determined by a court decision, those who have been convicted of serious crimes and those who are serving prison sentences pursuant to a conviction under a final judgment, cannot be elected as members of the Milli Majlis ...”
B. Electoral Code of the Republic of Azerbaijan of 2003
17. At the material time, the relevant provisions of the Electoral Code provided as follows:
Article 13 Passive electoral rights
“13.1. Except for the cases stipulated in Article 56 of the Constitution of the Republic of Azerbaijan and in this Code, every citizen who has active electoral rights shall also have passive electoral rights, that is, he or she shall have the right to form a referendum campaign group and to be elected as a member of the Milli Majlis, as President or as a member of a municipality, provided he or she meets the candidacy requirements laid down by the Constitution of the Republic of Azerbaijan for these offices.
13.2. Restrictions on passive electoral rights shall be established by Articles 56, 85, and 100 of the Constitution of the Republic of Azerbaijan and by this Code.
13.3. Pursuant to Articles 56 (III), 85 and 100 of the Constitution of the Republic of Azerbaijan, the following persons shall not have passive electoral rights, that is, they shall not have the right to be elected as a member of the Milli Majlis, as President or as a member of a municipality:
13.3.1. persons serving prison sentences pursuant to a conviction under a final judgment;
13.3.2. persons convicted of the crimes under Articles 15.4-15.5 of the Criminal Code of the Republic of Azerbaijan;
13.3.3. citizens of the Republic of Azerbaijan with dual citizenship (until their second citizenship expires); and
13.3.4. citizens of the Republic of Azerbaijan who have obligations vis-à-vis foreign States (until such obligations are terminated) ...”
Article 14 Incompatibility of positions (Vəzifələrin uzlaşmaması)
“14.1. Cases of incompatibility of positions shall be established by Articles 56, 85 and 100 of the Constitution and by this Code.
14.2. Pursuant to Article 56 (III) of the Constitution of the Republic of Azerbaijan, the following persons shall not have the right to serve as members of the Milli Majlis, as President or as members of municipalities, by virtue of the positions they occupy:
14.2.1. Members of the armed forces (while in military service);
14.2.2. Judges (while in office);
14.2.3. Civil servants (while in State service); and
14.2.4. Clergymen (din xadimləri) (while engaged in professional religious activity (peşəkar dini fəaliyyət ilə məsğul olduqları müddətdə)).”
Article 53 Nomination of candidates on their own initiative or directly by voters
53.3. An application containing a written undertaking by the candidate to terminate any activities incompatible with a post in an elected State or municipal body shall be submitted together with the notification mentioned in Article 53.2 of the Code. This application shall contain information on the candidate ([including] his or her official workplace (or type of activity, if not working) ...”
Article 69 Equality of registered candidates and referendum campaign groups
“69.1. All the registered candidates and referendum campaign groups shall have equal rights and responsibilities, taking into account their status.
69.2. Registered candidates and authorised representatives of referendum campaign groups who are in State or municipal service or who work in the mass media under an employment or civil contract shall be released from performing their official duties during the period of their participation in the election (referendum) campaign (this rule shall not apply to the [current] President of the Republic of Azerbaijan, [current] members of the Milli Majlis or [current] members of municipalities). The approved copy of the relevant order [on release from performing official duties] shall be submitted to the electoral commission registering the above-mentioned candidates or authorised representatives within 3 days, at the latest, from the day of registration. Such candidates or authorised representatives shall not abuse their official authority or positions in order to gain privileges or advantages.”
Article 143 Principles governing elections to the Milli Majlis
“125 members shall be elected to the Milli Majlis from single-seat constituencies (one member per constituency).”
Article 144 Right of the citizens of the Republic of Azerbaijan to be elected to the Milli Majlis
“The citizens of the Republic of Azerbaijan indicated in Article 85 of the Constitution of the Republic of Azerbaijan may be elected as members of the Milli Majlis ...”
C. Law on Freedom of Religion of 1992
Article 5 State and religious institutions
“In the Republic of Azerbaijan, religion and religious institutions (dini qurumlar) shall be separate from the State.
The State shall not delegate any of its functions to religious institutions and shall not interfere with their activities.
All religions and religious institutions shall be equal before the law. ...
Religious institutions shall not participate in the activities of political parties and shall not provide them with financial assistance.
In the event of the election or appointment of clergymen (din xadimləri) to positions in the institutions of government, their activities as clergymen (onların din xadimi kimi fəaliyyəti) shall be suspended for the period during which they occupy the relevant position.”
D. Relevant domestic practice concerning the eligibility of civil servants to stand for election
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
1. The parties’ submissions
2. The Court’s assessment
(a) General principles
(b) Application to the present case
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
B. Article 6 of the Convention
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. Pecuniary damage
2. Non-pecuniary damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into New Azerbaijani manats at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), less EUR 850 (eight hundred and fifty euros) granted by way of legal aid, plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 3 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, a concurring opinion of Judge Malinverni, joined by Judges Vajić and Kovler, is annexed to this judgment:
CONCURRING OPINION OF JUDGE MALINVERNI,
JOINED BY JUDGES VAJIĆ AND KOVLER
Article 14 of the same Code, entitled “Incompatibility of positions”, on the other hand, stipulated that the position of member of parliament could not be occupied at the same time as, or parallel to, certain other positions. This provision thus took pains to make clear that the incompatibility existed only while the persons concerned continued to exercise another activity. It referred to “members of the armed forces, while in military service”, judges, while in office”, civil servants, while in State service” and, finally, “clergymen, while engaged in professional religious activity”.
The Central Electoral Commission (the CEC) subsequently rejected a complaint by the applicant without giving any reasons beyond stating that it was “unsubstantiated” (paragraph 11).
In their turn, the Court of Appeal and then the Court of Cassation dismissed the appeals lodged by the applicant in decisions giving wholly inadequate reasons (paragraphs 12 and 13), stating in particular that “the fact that [the applicant] has been relieved of the above-mentioned positions does not rule out his engaging in professional religious activity”.
Lastly, the Constitutional Court, while referring to Article 14.2.4 of the Electoral Code, merely reaffirmed that this provision restricted “clergymen’s right to serve as members of parliament only to periods when the latter [were] engaged in professional religious activity” (paragraph 15 in fine), but said nothing about the applicant’s case, in particular whether the decision to refuse his candidacy had been correct.