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KERIMOVA v. AZERBAIJAN - 20799/06 [2010] ECHR 1369 (30 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1369.html
Cite as:
[2010] ECHR 1369
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FIRST
SECTION
CASE OF KERIMOVA v. AZERBAIJAN
(Application
no. 20799/06)
JUDGMENT
STRASBOURG
30
September 2010
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 Kerimova v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Registrar,
Having
deliberated in private on 9 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 20799/06) against the Republic
of Azerbaijan lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Azerbaijani national,
Ms Flora Alakbar qizi Kerimova (Flora Ələkbər
qızı Kərimova –
“the applicant”), on 23 May 2006.
The
applicant was represented by Mr F. Ağayev, a lawyer practising
in Baku. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr Ç. Asgarov.
The
applicant alleged, in particular, that the invalidation of the
parliamentary elections in her constituency had infringed her
electoral rights under Article 3 of Protocol No. 1 to the Convention.
On
3 September 2008 the President of the First Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1941 and lives in Baku.
She
stood for the elections to the Milli Majlis (Parliament) of
6 November 2005 as a candidate of the opposition bloc Azadliq.
She was registered as a candidate by the Constituency Electoral
Commission (“the ConEC”) for the single mandate
Sumgayit Second Electoral Constituency no. 42.
The
constituency was divided into thirty-seven electoral precincts, with
one polling station in each precinct. There were a total of fifteen
candidates running for election in this constituency.
A. Election results in the applicant’s
constituency
At
the end of election day, the applicant obtained copies of the
election protocols drawn up by each of the thirty-seven Precinct
Electoral Commissions (“the PEC”). According to the
copies of the PEC protocols in the applicant’s possession, she
received the largest number of votes in the constituency.
Specifically, she received a total of 5,566 votes. The second highest
number of votes, 3,922 votes in total, was received by a candidate
from the ruling Yeni Azerbaijan Party (H.). The applicant received
the highest number of votes in thirty polling stations, while H.
received the highest number of votes in seven polling stations.
According
to the ConEC protocol drawn up on 7 November 2005 following an
official tabulation of results received from the precincts, the
applicant obtained the highest number of votes cast in the
constituency. Specifically, according to the ConEC protocol, the
applicant received 5,350 votes, H. received 4,091 votes, and a third
candidate received 1,532 votes. The total number of votes cast for
each of the remaining candidates was substantially lower. The ConEC
protocol indicated the applicant as “the elected candidate”.
B. Invalidation of the election results and the
applicant’s appeals
On
8 November 2005 the Central Election Commission (“the CEC”)
issued a decision invalidating the election results in Sumgayit
Second Electoral Constituency no. 42. The decision, in its entirety,
stated as follows:
“Pursuant to Articles 19.4, 19.14, 25.2.22, 28.4,
100.12 and 170.2.2 of the Electoral Code and sections 3.5 and 3.6 of
the Law of 27 May 2003 on Approval and Entry into Force of the
Electoral Code, the Central Electoral Commission decides:
1. To invalidate the election results in
Polling Stations nos. 1, 3, 4, 5, 8, 11, 16, 17, 18, 19, 20, 21, 23,
24, 32, and 36 of Sumgayit Second Electoral Constituency no. 42 due
to impermissible alterations [“yolverilməz düzəlişlər”]
made in the PEC protocols of these polling stations as well as
infringements of law [“qanun pozuntuları”]
which made it impossible to determine the will of the voters.
2. To invalidate the election results in
Sumgayit Second Electoral Constituency no. 42 due to the fact
that the number of polling stations in which the election results
have been invalidated constitutes more than two-fifths of the total
number of polling stations in the constituency and that the number of
voters registered in those polling stations constitutes more than
one-quarter of the total number of voters in the constituency.
3. To forward the relevant materials
concerning this electoral constituency to the Prosecutor General’s
Office for investigation.”
On
11 November 2005 the applicant lodged an appeal against this decision
with the Court of Appeal, arguing that the findings in the CEC
decision were wrong. While the CEC decision noted that “impermissible
alterations” had been made to the protocols of sixteen PECs, in
reality such alterations had been made to the protocols of only five
PECs (in Polling Stations nos. 8, 10, 11, 21 and 24). The applicant
noted that this conclusion could be arrived at by simply comparing
the ConEC protocol with the copies of the PEC protocols in her
possession. She further noted that, on each occasion, the alterations
had been made to reduce the number of votes cast in her favour and to
increase the number of H.’s votes. Even though these
falsifications were directed against the applicant, she was still the
winner according to the falsified results announced by the ConEC.
As
to the alterations made in the remaining eleven PEC protocols, the
applicant argued that they were of a technical nature and did not
affect the number of votes cast for each candidate. Therefore, those
alterations could not impede the determination of the will of the
voters.
The
applicant further complained that the CEC had failed to consider the
possibility of ordering a recount of the votes as required by
Article 108.4 of the Electoral Code and to summon her as the
candidate and hear her explanation as required by Article 112.8 of
the Electoral Code.
Lastly,
the applicant noted that the ConEC protocol had been submitted to the
CEC on the night of 7 to 8 November 2005 and the issue of
invalidation of the election results had been put immediately on the
CEC agenda on 8 November. As a result, due to lack of time, some CEC
members had received incomplete or misleading information about the
matter and had thus made an uninformed decision.
During
the hearing held on 14 November 2005, the judges of the Court of
Appeal refused to independently examine the originals of the PEC and
ConEC protocols. The Court of Appeal upheld the CEC decision by
reiterating the findings made in that decision and concluding that
the invalidation of the election results based on those findings had
been lawful.
The
applicant lodged a cassation appeal. Apart from the arguments
advanced in her appeal before the Court of Appeal, she also
complained, inter alia, that the Court of Appeal had refused
to independently examine the primary evidence (the originals of the
relevant election protocols) and had simply taken the CEC’s
findings as fact.
On
25 November 2005 the Supreme Court rejected the applicant’s
appeal and upheld the Court of Appeal’s judgment as lawful.
Subsequently,
it was decreed to hold repeat elections in all constituencies in
which the election results had been invalidated. There were a total
of ten such constituencies. It appears that, owing to certain
opposition forces’ decision to boycott the repeat elections,
the applicant did not stand for election in the repeat elections held
on 13 May 2006.
C. Other judicial proceedings relevant to the case
In
the meantime, criminal proceedings were instituted against the ConEC
chairman and the chairman of the PEC of Polling Station no. 17, for
tampering with the official PEC protocols of a total of nine
different polling stations (Polling Stations nos. 1, 5, 8, 11, 17,
19, 20, 21 and 24).
On
19 January 2006 the Sumgayit City Court convicted both the defendants
under Articles 161.1 (falsification of election documents) and 308.1
(abuse of official power) of the Criminal Code. The first defendant
was fined in the amount of 110 new Azerbaijani manats (approximately
100 euros) and was banned from holding office in the electoral
administration. The second defendant was sentenced to one year and
twenty-eight days’ corrective labour, with 15% of his earnings
to be withheld in favour of the State.
The
factual findings in the Sumgayit City Court’s judgment, based
on the defendant’s own confessions and several witness
statements, revealed that the majority of falsifications in the PEC
protocols had been made at the ConEC level by its chairman, after the
submission of the protocols to the ConEC. These falsifications were
made in favour of either H. or other candidates, but not the
applicant.
In
particular, during the hearings, the first defendant, the ConEC
chairman, confessed that he had tampered with the PEC protocols for
eight polling stations. In particular, he altered the figures
representing the total vote count of various candidates in each
polling station by inserting additional numbers or changing the
existing numbers. In this manner, he increased the number of votes
for at least five candidates other than the applicant (including H.,
to whose vote count he added 100 more “votes”), and
reduced the number of votes received by the applicant (by 100
“votes”).
The
second defendant, the PEC chairman, confessed to having tampered with
the PEC protocol for his polling station in a similar manner, with
the aim of increasing the total vote counts of three candidates who
were the applicant’s opponents.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL REPORTS
A. Electoral Code
After
the count of votes in a polling station at the end of the election
day, the PEC draws up an election protocol (in three original copies)
documenting the results of the vote in the polling station
(Articles 106.1 106.6). One copy of the PEC protocol,
together with other relevant documents, is then submitted to the
relevant ConEC within 24 hours (Article 106.7). The ConEC
verifies whether the PEC protocol complies with the law and whether
it contains any inconsistencies (Article 107.1). After
submission of all PEC protocols, the ConEC tabulates, within two days
of election day, the results from the different polling stations and
draws up a protocol reflecting the aggregate results of the vote in
the constituency (Article 107.2). One copy of the ConEC protocol,
together with other relevant documents, is then submitted to the CEC
within two days of election day (Article 107.4). The CEC checks
whether the ConEC protocols comply with the law and whether they
contain any inconsistencies (Article 108.1) and draws up its own
final protocol reflecting the results of the elections in all
constituencies (Article 108.2).
If
within four days of election day the CEC discovers mistakes,
impermissible alterations or inconsistencies in protocols (including
the accompanying documents) submitted by ConECs, the CEC may order a
recount of the votes in the relevant electoral constituency (Article
108.4).
Upon
review of a request to invalidate the election win by a registered
candidate, an electoral commission has a right to hear submissions
from citizens and officials and to obtain necessary documents and
materials (Article 112.8).
In
case of discovery of irregularities aimed at assisting candidates who
have not ultimately been elected, such irregularities cannot be a
basis for invalidation of election results (Article 114.5).
The
ConEC or CEC may invalidate the election results in an entire
single-mandate constituency if election results in two-fifths of
polling stations, representing more than one-quarter of the
constituency electorate, have been invalidated (Article 170.2.2).
According
to former Article 106.3.6 of the Electoral Code in force at the
material time, during the initial vote-counting at a polling station
at the end of election day, upon discovery in the ballot-box of a
voting ballot which had not been properly placed in the corresponding
envelope, the vote on that ballot was considered to be invalid.
Article 106.3.6 was subsequently repealed on 2 June 2008.
B. The Organisation for Security and Cooperation in
Europe, Office for Democratic Institutions and Human Rights
(OSCE/ODIHR) Election Observation Mission Final Report on the
Parliamentary Elections of 6 November 2005 (Warsaw, 1 February 2006)
The
relevant excerpts from the report read as follows:
“Although constituency aggregate results were made
available within the legal deadline, detailed results by polling
station were only released on 10 November, four days after the
election, despite the computer networking of all ConECs with the CEC.
This made it difficult for candidates and observers to check that
results had been reported accurately. Protocols from two
constituencies, 9 and 42, were never posted publicly. ...
The CEC invalidated the results of four constituencies
[including Sumgayit Second Electoral Constituency No. 42] under
Article 170.2 of the Election Code, which states that if a ConEC or
the CEC cancels more than 2/5 of PECs representing more than 1/4 of
the total electorate in a constituency, then the entire constituency
result is considered invalid. ...
At least ... two ConEC chairpersons [ConECs 9 and 42]
were dismissed after election day for involvement in electoral
malfeasance. The two ConEC chairpersons were arrested and charged
with forging election documents. ... The CEC forwarded materials on
possible criminal violations to the Prosecutor General’s Office
regarding 29 PECs. ...
The process of invalidation of aggregated results in
four constituencies by the CEC did not have sufficient legal grounds
or an evidentiary basis, nor was the process transparent. The CEC
decisions on the invalidation of the election results in the four
constituencies concluded that there were “unacceptable
modifications performed on the protocols and law infringements which
made it impossible to determine the will of the voters” but did
not provide any factual basis to support this conclusion. ...
Furthermore, when it invalidated results, the CEC did
not make the required initial factual inquiry [as required by Article
170.2 of the Election Code], and ignored Article 108.4 of the
Election Code, which authorizes the CEC to order a recount of votes
in a constituency if the protocols and documents submitted by the
ConEC reveal “mistakes, inadmissible corrections and
inconsistencies.” Protocols of ConECs and PECs were not
examined or reviewed at CEC sessions. Invalidation of results in a
polling station was premised solely on the conclusion of an
individual CEC member as to whether a protocol should be invalidated.
The judgment of a single CEC member that there were deficiencies in
the protocol was accepted as established fact without any explanation
of the alleged defect or identification of the number of votes
involved. Accordingly, there was no factual basis presented publicly
for invalidating results in any of the four constituencies, which is
particularly troubling since the CEC registered few complaints that
alleged violations in these constituencies. ...
The adjudication of post-election disputes in the courts
largely disregarded the legal framework, and fell short of
internationally accepted norms. ... In most cases, complaints and
appeals were either dismissed without consideration of the merits or
rejected as groundless by both the Court of Appeal and the Supreme
Court.
Opposition candidates appealed the CEC’s
invalidation of results in constituencies 9, 42 and 110. The Court of
Appeal upheld the three CEC decisions without any investigation or
review of the primary documents and evidence, such as the PEC
protocols. In constituency 9, the appellant petitioned the Court of
Appeal to examine the protocols, which had been forwarded to the
Prosecutor General’s office by the CEC. This petition was
denied. In constituency 42, the appellant made an identical request
and the court again denied the petition, ruling that it was
impossible to obtain the protocols from the Prosecutor General within
the legal deadline. The CEC was not able to explain or give any
information as to any specific defect in an invalidated protocol or
offer any explanation as to what change to a protocol was sufficient
for invalidation. ...
Proceedings in the Supreme Court did not correct the
shortcomings noted above. The Supreme Court upheld each CEC
decision.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1
TO THE CONVENTION
Relying
on Article 3 of Protocol No. 1 to the Convention and Article 13
of the Convention, the applicant complained that the invalidation of
election results in her constituency had been arbitrary and unlawful
and had infringed her electoral rights as the rightful winner of the
election. She argued that the process of invalidation had lacked
transparency and sufficient safeguards against arbitrariness, and
that the decisions of the electoral commissions and domestic courts
lacked any factual basis and were contrary to a number of
requirements of the domestic electoral law.
The
Court considers that this complaint falls to be examined only under
Article 3 of Protocol No. 1 to the Convention and that no separate
examination is necessary under Article 13. Article 3 of Protocol No.
1 reads as follows:
“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.”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
Government submitted that the CEC’s decision to invalidate the
election results in the applicant’s electoral constituency had
been based on sound factual findings. These findings were
subsequently proved to have been correct by the outcome of the
criminal proceedings against the two officials of the ConEC for
Sumgayit Second Electoral Constituency no. 42 and the PEC for Polling
Station no. 17 of that constituency. Both of these officials
confessed to having tampered with the election protocols.
As
to the applicant’s argument that the CEC had failed to order a
recount, the Government argued that Article 108.4 of the Electoral
Code did not require the CEC to recount the votes in all cases, but
simply vested it with discretion to decide whether a recount of votes
should be ordered in each particular case. The Government further
argued that the recount of votes had not been possible in the present
case, because in accordance with Article 106.3.6 of the Electoral
Code in force at the material time (this provision was subsequently
repealed in 2008), ballots which were not in envelopes were
considered invalid. As all the ballots submitted to the CEC had
already been pulled out of their envelopes during the original count
in the relevant polling stations and had not been put back into them,
the recount of these ballots was impossible.
The
Government argued that the established incidents of tampering with
election protocols had made it impossible for the CEC to determine
the true will of the voters on the basis of those protocols. Such
interference with the procedure of the vote-count documentation
interfered with the free expression of the opinion of the people and,
therefore, the CEC had correctly invalidated the election results in
the constituency, as it was guided by the legitimate aim of ensuring
that only the candidates elected in accordance with the will
expressed by voters represented those voters in the Parliament.
The
applicant submitted that she had won the election convincingly by a
high margin of votes. The relevant results protocols, both before and
after the tampering, indicated her as a winner. Although the
tampering with the election protocols resulted in a considerable
reduction in the total number of votes counted as cast for her, and a
corresponding increase in the number of those cast for her main
opponent, she was still the clear winner of the election even
according to the results reflected in the protocols which had been
tampered with. Thus, even after the tampering, the relevant protocols
showed that the applicant had won by a margin of 1,259 votes.
The
applicant noted that all the impermissible changes introduced to the
election protocols had been made in favour of her opponents, and not
in her favour. Despite this, the CEC failed to comply with Article
114.5 of the Electoral Code, which did not allow invalidation of
election results if it was established that any irregularities
discovered during the election process had been made to assist the
candidates who had not been ultimately elected, and not the winning
candidate.
The
applicant noted that out of sixteen protocols which had been
allegedly tampered with only five contained impermissible alterations
of the total vote counts of candidates. The remaining protocols
contained alterations of a “technical nature” which did
not affect the figures on the total number of votes cast, and
therefore could not impede the determination of the true will of the
voters.
As
for the Government’s argument concerning the alleged
impossibility of a recount of votes, the applicant noted that the
Government’s reference to former Article 106.3.6 of the
Electoral Code was wrong, because that provision concerned only the
original count of the votes in polling stations at the end of
election day, when the envelopes containing the ballots were first
taken out of the ballot boxes, and did not concern any subsequent
recount of votes in the presence of the CEC members. In any event,
the applicant considered that on the facts of the case there was no
need for a recount, for the simple reason that her victory in the
election could be established beyond any doubt even from the
protocols tampered with in favour of her opponents.
The
applicant submitted that there were no legitimate grounds for
invalidation of the election results. Such a decision in the present
case meant in essence that the domestic electoral system allowed one
random person to frustrate the opinion of tens of thousands of voters
simply by introducing minor alterations to election protocols. This
in turn gave the current Government the opportunity to prevent
opposition candidates from becoming members of parliament by simply
having an electoral official tamper with an election protocol in
order to render the results of the election null and void, and
subsequently escape with a very lenient penalty for doing this. In
this connection, the applicant noted that the ConEC chairman who had
been found guilty of ruining the election results had received a very
mild punishment in the form of a small fine and, despite his
conviction, was reinstated to work in the public service in 2008.
2. The Court’s assessment
Article
3 of Protocol No. 1 appears at first sight to differ from the other
rights guaranteed in the Convention and Protocols, as it is phrased
in terms of the obligation of the High Contracting Party to hold
elections which ensure the free expression of the opinion of the
people rather than in terms of a particular right or freedom.
However, the Court has established that it guarantees individual
rights, including the right to vote and to stand for election (see
Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51,
Series A no. 113). The Court has consistently highlighted the
importance of the democratic principles underlying the interpretation
and application of the Convention and has emphasised that the rights
guaranteed under Article 3 of Protocol No. 1 are crucial to
establishing and maintaining the foundations of an effective and
meaningful democracy governed by the rule of law (ibid., § 47;
see also Hirst v. the United Kingdom (no. 2) [GC], no.
74025/01, § 58, ECHR 2005-IX).
The
rights bestowed by Article 3 of Protocol No. 1 are not absolute.
There is room for “implied limitations” and Contracting
States have a wide margin of appreciation in the sphere of elections
(see Mathieu-Mohin and Clerfayt, cited above, § 52;
Matthews v. the United Kingdom [GC], no. 24833/94, §
63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95,
§ 201, ECHR 2000-IV). It is, however, for the Court to
determine in the last resort whether the requirements of Article 3 of
Protocol No. 1 have been complied with. In particular, it has to
satisfy itself that the conditions do not curtail the rights in
question to such an extent as to impair their very essence and
deprive them of their effectiveness; that they are imposed in pursuit
of a legitimate aim; and that the means employed are not
disproportionate (see Mathieu-Mohin and Clerfayt, cited above,
§ 52, and Gitonas and Others v. Greece, 1 July 1997,
§ 39, Reports of Judgments and Decisions 1997-IV). Such
conditions must not thwart the free expression of the people in the
choice of the legislature – in other words, they must reflect,
or not run counter to, the concern to maintain the integrity and
effectiveness of an electoral procedure aimed at identifying the will
of the people through universal suffrage (see Hirst (no. 2),
cited above, § 62).
Furthermore,
the object and purpose of the Convention, which is an instrument for
the protection of human rights, requires its provisions to be
interpreted and applied in such a way as to make their stipulations
not theoretical or illusory but practical and effective (see, among
many other authorities, United Communist Party of Turkey and
Others v. Turkey, 30 January 1998, § 33, Reports
1998-I; Chassagnou and Others v. France [GC], nos.
25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III; and
Lykourezos v. Greece, no. 33554/03, § 56, ECHR
2006-VIII). The right to stand as a candidate in an election, which
is guaranteed by Article 3 of Protocol No. 1 and is inherent in
the concept of a truly democratic regime, would only be illusory if
one could be arbitrarily deprived of it at any moment. Consequently,
while it is true that States have a wide margin of appreciation when
establishing eligibility conditions in the abstract, the principle
that rights must be effective requires that the eligibility procedure
contain sufficient safeguards to prevent arbitrary decisions (see
Podkolzina v. Latvia, no. 46726/99, § 35, ECHR
2002-II). Although originally stated in connection with the
conditions on eligibility to stand for election, the principle
requiring prevention of arbitrariness is equally relevant in other
situations where the effectiveness of individual electoral rights is
at stake (see Namat Aliyev v. Azerbaijan,
no. 18705/06, § 72, 8 April 2010), including the
manner of review of the outcome of elections and invalidation of
election results (see Kovach v. Ukraine, no. 39424/02, § 55
et seq., ECHR 2008-...).
The
Court has emphasised that it is important for the authorities in
charge of electoral administration to function in a transparent
manner and to maintain impartiality and independence from political
manipulation (see The Georgian Labour Party v. Georgia,
no. 9103/04, § 101, 8 July 2008), that the proceedings
conducted by them be accompanied by minimum safeguards against
arbitrariness and that their decisions are sufficiently reasoned
(see, mutatis mutandis, Namat Aliyev,
cited above, §§ 81-90, and Kovach, cited
above, §§ 59-60).
The
Government contended that the impugned decision on the invalidation
of election results was aimed at protecting the free expression of
the voters’ opinion from illegal interference and ensuring that
only the rightfully elected candidates represented the voters in the
Parliament. However, the Court has doubts as to whether a practice of
discounting all votes cast in an entire electoral constituency owing
merely to the fact that irregularities have taken place in some
polling stations, regardless of the extent of the irregularities and
their impact on the outcome of the overall election results in the
constituency, can necessarily be seen as pursuing a legitimate aim
for the purposes of Article 3 of Protocol No. 1 (compare, mutatis
mutandis, Kovach, cited above, § 52). However, the
Court is not required to take a final view on this issue in the light
of its findings below.
It
is sufficiently clear from the material available in the case file
that, according to the copies of PEC protocols obtained by the
applicant from each of the polling stations at the end of election
day (before the incidents of tampering with protocols took place),
the applicant received a total of 5,566 votes against H.’s
3,992 votes. According to the ConEC protocol issued on the basis of
those PEC protocols, after some of those protocols had been tampered
with, the applicant received 5,350 votes against H.’s 4,091
votes. Thus, it is obvious that the election results, as they stood
both before and after the irregularities involving illegal
alterations to protocols, showed that the applicant was the clear
winner of the elections. Moreover, neither the CEC nor the domestic
courts hearing appeals against its decision, nor the Sumgayit City
Court, dealing with the criminal case concerning the irregularities
in question, ever found that any of the illegal alterations had been
made to assist the applicant’s cause. On the contrary, it was
found by the Sumgayit City Court that they had been made exclusively
in favour of her opponents. Neither did the Government, in their
observations, argue that the irregularities had been intended to
benefit the applicant. Accordingly, even despite the fact that these
irregularities had been made in an attempt to inflate her opponents’
vote counts and decrease her vote count, the election results still
showed the applicant as a clear winner. In such circumstances, the
Court finds it hard to understand the electoral authorities’
and the Government’s position that these irregularities had
somehow made it “impossible to determine the will of the
voters” in the entire constituency. On the contrary, the Court
considers that the facts of the case clearly disclose a situation
where the irregularities, however grave they might have been, did not
impact the ultimate result of the election and failed to cast any
doubt on the choice made by the majority of voters in the
constituency.
Moreover,
as to the CEC decision of 8 November 2005 invalidating the election
results in the applicant’s constituency, the Court notes that
it contained no specific description of the alleged “impermissible
alterations” made to the PEC protocols or other “infringements
of law”, no elaboration as to the nature of these “alterations”
and “infringements”, and no reasons explaining as to why
the alleged breaches obscured the outcome of the vote in the relevant
polling stations and made it impossible to determine the true opinion
of the voters. In such circumstances the Court cannot but note that
the CEC decision was totally unsubstantiated.
As
to the parties’ submissions concerning the recount of votes,
the Court agrees with the applicant that such a recount was in any
event redundant because it was possible to establish who was the
winning candidate even despite the irregularities. Nevertheless, the
Court finds alarming the CEC’s failure to even consider the
possibility of a recount before invalidating the election results.
The Court considers that, in cases where illegal tampering with vote
counting or election documents may affect the determination of the
outcome of the elections, a fair procedure for recounting votes where
such a recount is possible is an important safeguard of the fairness
and success of the entire election process. Even accepting the
Government’s argument that under Azerbaijani law an election
recount was optional (at the CEC’s discretion) and not
mandatory, the Court considers that in the present case the CEC could
have considered the possibility of a recount and at least explained
the reasons for passing up this opportunity before deciding on an
outright invalidation of the election results. In the Court’s
view, the CEC’s failure to do so contributed to the appearance
of arbitrariness of its decision.
As
to the Government’s argument that the recount was not possible
owing to the conflicting requirements of former Article 106.3.6 of
the Electoral Code, the Court finds this argument misplaced. Firstly,
as noted above, it was up to the CEC to explain the reasons for not
ordering a recount and it failed to offer such reasons. Secondly, it
appears that former Article 106.3.6 of the Electoral Code (see
paragraph 29 above) concerned the determination of the validity of
the ballots at the moment when they were taken out of the ballot
boxes for the original count. Once a ballot was pulled out of its
envelope, determined to be valid and counted during the original
count, nothing could prevent the use of this ballot at any subsequent
election recount. Thirdly, the Court generally finds that it is
unacceptable to rely solely on such irrelevant and petty formalities
in order to justify a failure to abide by statutorily-prescribed
safeguards of the integrity of the electoral process.
Furthermore,
having regard to the CEC decision of 8 November 2005, the Court notes
that the CEC first invalidated the election results in sixteen
polling stations owing to the alleged irregularities, and then
proceeded to rely on Article 170.2.2 of the Electoral Code in order
to invalidate the election results in the entire constituency based
on the fact that the elections in two-fifths of the total number of
polling stations representing more than one-quarter of the
constituency electorate had been annulled. However, the Court finds
it troubling that, upon invalidating the elections both in the
relevant polling stations and in the entire constituency, the CEC
ignored the requirements of Article 114.5 of the Electoral Code,
which prohibited invalidation of election results at any level on the
basis of a finding of irregularities committed for the benefit of
candidates who lost the election (see paragraph 27 above). This rule
protected the opinion of the electorate, as well as the interests of
a candidate who received the highest number of votes and who was not
responsible for any irregularities, from any unlawful actions
attempted against such winning candidate. As such, this rule was
aimed at preventing a situation where a winning candidate is
wrongfully punished by being deprived of his or her victory in the
election for malfeasance attributable to his or her losing opponents.
In this connection, the Court notes that the situation envisaged in
Article 114.5 of the Electoral Code is the direct opposite of a
situation where irregularities are found to have been allegedly made
to the benefit of the “winning” candidate (contrast Namat
Aliyev, cited above, §§ 9-18, 64, 67 and 74). However,
the Court observes that, despite the expressly stated requirement of
Article 114.5 of the Electoral Code, neither the CEC, at the time of
making its decision to annul the election, nor the domestic courts
dealing with the appeals against its decision, made an attempt to
determine in whose favour the alleged irregularities had been made.
In any event, the subsequent criminal proceedings at the Sumgayit
City Court established that all the illegal alterations to the PEC
protocols had been made exclusively for the benefit of the
applicant’s opponents. Finally, as noted above, even despite
these illegal alterations, the applicant still emerged as the
candidate with the largest number of votes and it has never even been
suggested by any of the domestic authorities that she could be
responsible for any of the irregularities in question. In such
circumstances, it is all but apparent that the decision to invalidate
the election results in the applicant’s constituency, and thus
deprive her of the parliamentary seat, not only lacked any relevant
substantiation but was also made in breach of the requirement of
Article 114.5 of the Electoral Code. At the very least, the
failure to take this requirement into account, and the lack of any
explanation for such failure, contributed to the appearance of
arbitrariness of the annulment of the election.
Lastly,
the Court notes that, despite the fact that the applicant repeatedly
raised all of the above points in her appeals to the domestic courts,
the courts failed to adequately address these issues and simply
reiterated the CEC’s findings. They refused to examine any
primary evidence, which primarily consisted of the illegally altered
originals of the PEC protocols, and failed to review the compliance
of the CEC’s decision with the requirements of the electoral
law. As such, the manner of examination of the applicant’s
election-related appeals was ineffective.
The
authorities’ inadequate approach to this matter brought about a
situation where the whole election process in the entire electoral
constituency was essentially single-handedly sabotaged by two
low-ranking electoral officials, who had abused their position to
make some changes to a number of election protocols that were in
their possession. By arbitrarily invalidating the election results
because of these officials’ actions, the domestic authorities
essentially aided and abetted them in thwarting the election. Such
lack of concern for integrity of the electoral process from within
the electoral administration cannot be considered compatible with the
spirit of Article 3 of Protocol No. 1 to the Convention.
In
view of the above, the Court concludes that, while the perpetrators
of the irregularities, which ostensibly “necessitated”
the authorities’ decision to invalidate the election results,
did not appear to succeed in their aim of affecting the ultimate
outcome of the elections, the invalidation decision itself
“succeeded” in doing so. The annulment of the elections
in the applicant’s constituency lacked any relevant reasons and
was in apparent breach of the procedure established by the domestic
electoral law (see paragraph 51 above). This decision arbitrarily
infringed the applicant’s electoral rights by depriving her of
the benefit of being elected to Parliament, and as such ran counter
to the concern to maintain the integrity and effectiveness of an
electoral procedure aimed at identifying the will of the people
through universal suffrage.
There
has accordingly been a violation of Article 3 of Protocol No. 1 to
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
In
conjunction with the above complaint, the applicant complained that
despite clearly winning the election she was arbitrarily deprived of
her seat in Parliament owing to her political affiliation with an
opposition party. She relied on Article 14, which provides as
follows:
“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.”
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
However,
having regard to its above finding in relation to Article 3 of
Protocol No. 1, the Court considers that it is not necessary to
examine whether in this case there has been a violation of Article
14.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
1. Pecuniary damage
The
applicant claimed 83,185.83 euros (EUR) for loss of the earnings she
would have received in the form of a parliamentary member’s
salary if elected to the Milli Majlis had the results of elections in
her constituency not been invalidated. She noted that her other
income during the relevant period, as a retired singer and recipient
of a State allowance, amounted only to 125 new Azerbaijani manats
(AZN) (approximately EUR 120) per month.
The
Government contested the applicant’s claim and argued that her
other income must have been much higher than AZN 125 per month.
The
Court reiterates its analysis made in the Kovach case (cited
above, § 66), which concerned a similar claim:
“It is true that, if elected, the applicant would
have received a salary as a member of Parliament. That is not,
however, sufficient to award the sums claimed, because the sums
claimed would have to be set off against other income which he may
have been receiving and which he would have had to forego if elected,
as in the case of Lykourezos v. Greece ([no. 33554/03, §
64, ECHR 2006 VIII], in which the applicant was prevented from
continuing to exercise his mandate). The applicant has given details
of the salary he would have received as a member of Parliament, but
has not specified what his net loss would have been.”
In
the earlier Lykourezos judgment (cited above, § 64), the
Court approached the issue as follows:
“The Court notes that it was not disputed that,
had the applicant not been forced to forfeit his parliamentary seat,
he would have received, between the date of the impugned measure and
the end of the legislature to which he had been elected, the amount
claimed. However, the Court also notes that the applicant did not
remain inactive during this period; on the contrary, he was able to
resume his professional activities and to receive the resultant fees.
In addition, the applicant has not shown that the total of the fees
in question was less than that of the parliamentary allowances that
he did indeed lose during the period in question ... Having regard to
the inherent uncertainty in any attempt to estimate the real losses
sustained by the applicant and making its assessment on an equitable
basis, the Court decides to award him EUR 20,000 under this
head, plus any tax that may be chargeable.”
The
Court notes that, unlike in the above cases, the applicant submitted
detailed information about the difference between the salaries that
she would have received as a member of parliament and her other
income which she had been receiving during the relevant period, which
information is in principle sufficient to calculate her “net
loss”. The Court considers that, had the applicant become a
member of parliament, she could have been expected to serve at least
part of her tenure and received certain income from her service.
Accordingly, she suffered certain pecuniary damage, although this
damage cannot be technically quantified in terms of monthly salaries
for the entire term of service of a member of parliament. Therefore,
having regard to the inherent uncertainty in any attempt to estimate
the real losses sustained by the applicant and making its assessment
on an equitable basis, the Court decides to award her EUR 50,000
under this head.
2. Non-pecuniary damage
The
applicant claimed EUR 100,000 in compensation for the anguish and
distress caused to her by the infringement of her electoral rights.
The
Government argued that the amount claimed was unjustified and
excessive.
The
Court considers that the applicant suffered non-pecuniary damage
which cannot be compensated solely by the finding of the violation of
Article 3 of Protocol No. 1. Ruling on an equitable basis, the Court
awards her the sum of EUR 7,500 in respect of non-pecuniary damage,
plus any tax that may be chargeable.
B. Costs and expenses
The
applicant also claimed EUR 4,800 for the costs and expenses incurred
before the Court, including EUR 4,500 for legal fees and EUR 300 for
postal expenses.
The
Government claimed that the claim in respect of legal fees was
excessive and that the claim in respect of postal expenses was
unsupported by any documents.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Having regard to the legal services
actually rendered in the present case and to the services stipulated
in the relevant contract concluded between the applicant and her
lawyer, the Court considers that the amounts claimed do not
correspond to the legal assistance that was actually provided in the
present case. Therefore, only a partial award can be made in this
respect. Furthermore, the Court notes that the applicant failed to
support her claim for postal expenses with any documentary evidence
and therefore no sum can be awarded in respect of those expenses.
Regard
being had to the above, the Court considers it reasonable to award
the sum of EUR 1,600 for the proceedings before the Court, plus any
tax that may be chargeable to the applicant on that sum.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
3 of Protocol No. 1 to the Convention;
Holds that there is no need to examine
separately the complaint under Article 14 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
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 on the
date of settlement:
(i) EUR
50,000 (fifty thousand euros) in respect of pecuniary damage;
(ii) EUR
7,500 (seven thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage; and
(ii) EUR
1,600 (one thousand six hundred euros), 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 30 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
