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NAMAT ALIYEV v. AZERBAIJAN - 18705/06 [2010] ECHR 489 (8 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/489.html
Cite as:
[2010] ECHR 489,
(2013) 57 EHRR 30,
57 EHRR 30
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FIRST
SECTION
CASE OF NAMAT ALIYEV v.
AZERBAIJAN
(Application
no. 18705/06)
JUDGMENT
STRASBOURG
8 April 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 Namat Aliyev v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 18705/06) 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,
Mr Namat Faiz oglu Aliyev (Namət Faiz oğlu Əliyev
– “the applicant”), on 20 April 2006.
The
applicant was represented by Mr I. Aliyev, 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 election in his electoral
constituency had not been free and fair and that his right to stand
for election, as guaranteed by Article 3 of Protocol No. 1 to
the Convention, had been infringed due to the relevant authorities'
failure to effectively address his complaints concerning election
irregularities.
On
7 November 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1966 and lives in Baku.
The
applicant stood for the elections to the Milli Majlis (Parliament) of
6 November 2005 as a candidate of the opposition bloc Azadliq, a
coalition formed for electoral purposes by the Popular Front Party of
Azerbaijan, with which the applicant was affiliated, together with a
number of other opposition parties. He was registered as a candidate
by the Constituency Electoral Commission (“the ConEC”)
for the single-mandate Barda City Electoral Constituency no. 93.
The
constituency was divided into forty-two electoral precincts, with one
polling station in each precinct. There were a total of eighteen
candidates running for election in this constituency. The applicant
was the only candidate nominated by Azadliq in that constituency.
According
to the ConEC protocol drawn up after election day, one of the
applicant's opponents, Z.O., a member of the Motherland Party,
obtained the highest number of votes cast in the constituency.
Specifically, according to the ConEC protocol, Z.O. received 5,816
votes (41.25%), the applicant received 2,001 votes (14.19%), and a
third candidate received 1,821 votes (12.92%). The total number of
votes cast for each of the remaining candidates was substantially
lower.
A. The applicant's claims concerning alleged
irregularities on election day
On
7 and 8 November 2005 the applicant submitted identical complaints to
the ConEC and the Central Electoral Commission (“the CEC”),
in which he claimed, inter alia, that:
(i) the local
executive and municipal authorities, as well as heads of state funded
institutions and organisations, interfered in the election process in
favour of Z.O. prior to and during election day (in the form of
openly campaigning in his favour and coercing voters to vote for
him);
(ii) Z.O.'s
supporters (mostly State officials of various sorts) intimidated
voters and otherwise attempted to influence voter choice in polling
stations;
(iii) in
several polling stations, observers were harassed or excluded from
the voting area by the police;
(iv) some
citizens residing in relevant election precincts were unable to
exercise their right to vote due to the authorities' failure to
include them in relevant voters lists; and
(v) there were
instances of multiple voting and ballot-box stuffing in different
polling stations.
In
support of his claims, the applicant submitted to the CEC originals
of more than 30 affidavits (akt) of election observers, audio
tapes and other evidence documenting specific instances of
irregularities complained of. Some examples of the evidence presented
are summarised below.
The
ten-minute audio recording contained interviews with a number of
unidentified voters, who stated, inter alia, that prior to
election day directors of governmental institutions and public
organisations (such as public schools and libraries) located on the
territory of the constituency had held staff meetings with the
specific purpose of instructing their staff to vote for Z.O.,
threatening them with salary cuts if Z.O. did not win the election.
In
an affidavit signed by them, seven observers in Polling Station no. 1
stated, inter alia, that twenty-five voters had voted twice,
however the chairman of the Precinct Electoral Commission (“the
PEC”) for this polling station had taken no action when this
matter was brought to his attention.
Seven
observers in Polling Station no. 11 noted, inter alia,
that the director of a public school where the polling station was
located had openly intervened in the election process and interfered
with the functions of the PEC without any objection by PEC members.
Also, the same school director instructed a police officer to
forcibly exclude one of the observers from the polling station.
Three
observers in Polling Station no. 14 noted, inter alia,
that a certain named State official had actively interfered in the
election process by openly campaigning in favour of Z.O. on the
premises of the polling station, asked voters to vote for him and
brought groups of unregistered voters to the polling station to vote
for Z.O.
Eight
observers in Polling Station no. 16 witnessed one incident of
ballot-box stuffing by a PEC member.
An
affidavit signed by six observers and candidates' representatives in
Polling Station no. 31 stated that, at 7 p.m., when the
vote-counting began, all of the observers had been forced out of the
polling station premises by the police on the instruction of the PEC
chairman. In the absence of the observers, a few hundred false
ballots were illegally added into Z.O.'s total vote count in the
polling station. According to a separate affidavit signed by
observers from the same polling station, the PEC chairman and
representatives of the executive and municipal authorities interfered
in the election process and instructed voters to vote for Z.O.
According to another affidavit, there were also several
irregularities in the voter lists in this polling station.
Three
observers in Polling Station no. 41 noted, inter alia,
that commission members had illegally added several additional
ballots during the vote-counting.
In
their affidavits, observers from Polling Stations nos. 7, 12,
13, 15, 29, 30 and 37 documented similar incidents of alleged illegal
campaigning in favour of Z.O., ballot-box stuffing and other forms of
tampering with ballots, and irregularities with voter lists. A number
of observers also noted that voting booths in some polling stations
were of inadequate standard.
B. Reaction of the electoral commissions
According
to the applicant, neither the ConEC nor the CEC replied to his
complaints.
According
to the Government, the applicant's complaint was examined by the
ConEC. As it appears from the documents submitted by the Government,
following receipt of the applicant's complaint, the ConEC demanded
explanations from the chairmen and members of the relevant PECs in
connection with the applicant's allegations. In reply, about twenty
PEC chairmen and members submitted brief handwritten statements (some
of them as short as one or two sentences), or “explanatory
notes” (“izahat”), all signed on 21 November
2005. All these notes stated in general terms that the election
process in their respective polling stations had gone smoothly and
without any irregularities, undue pressure on voters or any other
breaches of the electoral law, and that any allegations by the
applicant to the contrary were false.
On
23 November 2005 the ConEC rejected the applicant's complaint.
Without any elaboration on details of the applicant's specific
allegations, it decided that they were unsubstantiated. At the same
time, however, the ConEC confirmed that the condition of the voting
booths in Polling Station no. 37 and “some other”
(unidentified) polling stations had been poor. This finding did not
entail any consequences for the official election results in those
polling stations or in the constituency as a whole.
On
the same day, 23 November 2005, the CEC issued its final protocol
approving the overall election results in the country (with the
exception of a few electoral constituencies) and submitted it,
together with relevant documents, to the Constitutional Court for
review and approval of the election results. The election results for
Barda City Electoral Constituency no. 93 were among those
approved by the CEC, confirming Z.O. as the winner in this
constituency.
According
to the country-wide results, the ruling Yeni Azerbaijan Party again
won the majority of seats in the Milli Majlis.
C. Court proceedings
On
25 November 2005 the applicant lodged an action with the Court of
Appeal, asking the court to invalidate the CEC's final protocol in
the part relating to the election results in Barda City Electoral
Constituency no. 93. In addition to restating all of his complaints
made previously to the electoral commissions, he also complained of
specific instances of discrepancies and inconsistencies in the PEC
protocols which served as a basis for compiling the election results
in the constituency as a whole. In particular, he noted a significant
discrepancy in the PEC protocol for Polling Station no. 11, in
which certain numbers did not add up correctly. As a result, more
than 700 blank ballots out of more than 1,000 blank ballots
originally issued to the PEC appeared to be “missing”
(the protocol indicated that 313 persons had voted in that polling
station, but only eleven of the remaining blank ballots were
indicated as “unused” and formally “cancelled”,
with no explanation as to what happened to the remaining more than
700 blank ballots). The same was the case with the PEC protocol for
Polling Station no. 13, where more than 600 blank ballots were
unaccounted for. Similar discrepancies were also allegedly found in
PEC protocols for five other polling stations. The applicant claimed
that these “missing” blank ballots had been sneaked out
and illegally used for ballot-box stuffing in favour of Z.O. in
various other polling stations.
The
applicant argued that, due to all these irregularities, it was not
possible to determine the true opinion of the voters in his
constituency. He also complained that the CEC had failed to examine
his complaint of 7 November 2005. In support of his claims, the
applicant submitted copies of the same evidence previously submitted
to the CEC, including photocopies of the observers' affidavits
and copies of audio material.
On
28 November 2005 the Court of Appeal dismissed the applicant's claims
as unsubstantiated. The court did not consider the photocopies of the
affidavits as admissible evidence, noting that in accordance with the
Code of Civil Procedure (“the CCP”) either the originals
or notarised copies of those affidavits should have been submitted.
Specifically, most of the reasoning contained in the Court of
Appeal's judgment was limited to the following:
“According to Article 14.2 of the CCP ..., the
court shall examine and rely on only the evidence submitted by the
parties.
According to Article 77.1 of the same Code, each party
must prove any allegations which it makes in support of its claims
and objections.
Based on the material in the case file and the parties'
submissions, [the applicant's] claim against [the CEC] ... cannot be
upheld. The alleged incidents concerning Barda City Electoral
Constituency no. 93, as described in the claim, did not take place.
Documents attached to the claim are photocopies and no originals or
notarised copies of documents have been submitted. [As such,]
affidavits attached to the claim cannot be admitted as evidence. On
the other hand, the alleged omission of a significant number of
voters from voting lists has not been proved by the material in the
case file.
In such circumstances, the court considers that [the
applicant's] claim against [the CEC] ... must be dismissed.”
On
30 November 2005 the applicant lodged a further appeal with the
Supreme Court, reiterating his claims. He also noted that he had
submitted the originals of the documentary evidence to the CEC on
7 November 2005 and argued that the Court of Appeal had failed
to take this fact into account.
On
1 December 2005 the Supreme Court dismissed the applicant's appeal on
the same grounds as the Court of Appeal's judgment of 28 November
2005. As to the originals of the documentary evidence allegedly
submitted to the CEC, the Supreme Court noted that the applicant had
failed to submit any evidence proving that he had ever applied to the
CEC with a complaint. The reasoning in the Supreme Court's decision
was as follows:
“According to Article 77.1 of the CCP ..., each
party must prove any allegations which it makes in support of its
claims and objections.
[The applicant] has not presented any convincing
evidence capable of proving the allegations forming the basis of his
claim. The photocopies of affidavits attached to his claim were not
admitted as convincing evidence by the Court of Appeal in a lawful
and justified manner, as they had not been notarised.
Moreover, the case materials contain no documents
confirming that the applicant had applied to the electoral
commissions under the procedure specified in Article 112 of the
Electoral Code.
Although at the oral hearing the applicant claimed that
he had submitted the originals of the affidavits to the CEC, he has
not submitted to the court any evidence showing that he had
[actually] applied to the CEC.
However, according to Articles 89 and 90 of the CCP ...,
originals or duly certified copies of evidence should be submitted to
courts. The applicant has not complied with this rule.
According to Article 416 of the CCP ..., the court of
cassation instance verifies whether the court of appellate instance
has correctly applied substantive and procedural law.
The court considers that the Court of Appeal has
correctly applied the relevant law and correctly reached the
conclusion that the claim was unsubstantiated. There is no ground for
quashing the [Court of Appeal's] judgment.”
On
the same day, 1 December 2005, the Constitutional Court confirmed the
election results in the majority of the electoral constituencies,
including Barda City Electoral Constituency no. 93.
II. RELEVANT DOMESTIC LAW
A. Electoral Code
The
following are the relevant provisions of the Electoral Code as
effective at the material time.
1. Electoral commissions: system, composition and
decision-making procedure
Elections
and referenda are organised and carried out by electoral commissions,
which are competent to deal with a wide range of issues relating to
the electoral process (Article 17). There are three levels of
electoral commissions: (a) the Central Electoral Commission
(“the CEC”); (b) constituency electoral commissions (“the
ConEC”); and (c) precinct (polling station) electoral
commissions (“the PEC”) (Article 18.1).
Each
electoral commission at every level has a chairperson and two
secretaries who are elected by open voting by members of the relevant
electoral commission. The chairperson of each electoral commission at
every level must be a representative of the political party holding
the majority of parliamentary seats in the Milli Majlis. One of the
secretaries must be a representative of the political parties holding
the minority of parliamentary seats, and the other one a
representative of “independent” members of parliament who
are not formally affiliated with any political party (hereafter also
referred to as “the non-partisan members of parliament”)
(Article 19.3).
Meetings
of electoral commissions at every level are convened either by the
chairperson or by at least one third of the relevant commission's
members (Article 19.5). A quorum for meetings of any electoral
commission is at least two-thirds of its members (Article 19.10). The
qualified majority vote of two-thirds of the members who are in
attendance is required for adoption of decisions of any commission at
any level (Articles 28.2, 34.3 and 39.3).
The
CEC consists of eighteen members who are elected by the Milli Majlis.
Six members of the CEC are directly nominated by and represent the
political party holding a majority of seats in the Milli Majlis, six
members are nominated by and represent the non-partisan members of
parliament, and six members are nominated by and represent all the
political parties holding a minority of parliamentary seats. Out of
the six nominees representing the non-partisan members of parliament,
two candidates are nominated “in agreement” with the
“interested parties”: one of the nominees is agreed by
the representatives of the majority party and the other is agreed by
the representatives of the minority parties (Article 24).
Each
ConEC consists of nine members who are appointed by the CEC. Three
members of the ConEC are nominated by the CEC members representing
the parliamentary majority party, three members are nominated by the
CEC members representing the parliamentary minority parties, and
three members are nominated by the CEC members representing the
non partisan members of parliament. Local branches of the
relevant political parties may suggest candidates to ConEC membership
for nomination by the CEC members representing the relevant parties.
Out of the three candidates nominated by the CEC members representing
the non-partisan members of parliament, two candidates are nominated
“in agreement” with the “interested parties”:
one of the nominees is agreed with the CEC members representing the
parliamentary majority party and the other is agreed with the CEC
members representing the parliamentary minority parties (Article 30).
Each
PEC consists of six members appointed by the relevant ConEC. Two
members of the PEC are nominated by the ConEC members representing
the parliamentary majority party, two members are nominated by the
ConEC members representing the parliamentary minority parties, and
two members are nominated by the ConEC members representing the
non partisan members of parliament. Local branches of the
relevant political parties may suggest candidates for PEC membership
for nomination by the ConEC members representing the relevant
parties. As to candidates for PEC membership nominated by the ConEC
members representing the non partisan members of parliament,
these candidates may also be suggested to the relevant ConEC members
by voters or voters' initiative groups. These candidates must be
citizens of the Republic of Azerbaijan who permanently reside within
the territory of the relevant electoral constituency (Article 36).
2. Examination of electoral disputes
Candidates
and other affected persons may complain about decisions or actions
(or omissions to act) violating electoral rights of candidates or
other affected persons, within three days after publication or
receipt of such decisions or occurrence of such actions (or
omissions) or within three days after an affected person has become
aware of such decisions or actions (or omissions) (Article 112.1).
Such
complaints can be submitted directly to a higher electoral commission
(Article 112.2). If a complaint is first decided by a lower electoral
commission, a higher electoral commission may quash its decision or
adopt a new decision on the merits of the complaint or remit the
complaint for a new examination (Article 112.9). Decisions or actions
(or omissions to act) of a ConEC may be appealed to the CEC, and
decisions or actions (or omissions to act) of the CEC may be appealed
to the appellate court (Article 112.3).
If the examination of the complaint reveals a suspicion that a
criminal offence has been committed, the relevant prosecuting
authority can be informed thereof. The CEC must adopt a reasoned
decision in this regard. The relevant prosecution authority must
examine this information within a three-day period (Article 112.4).
In
cases stipulated in the Electoral Code, the courts are empowered to
quash decisions of the relevant electoral commissions, including
decisions concerning voting results and election results (Article
112.5).
While
examining requests to invalidate the election of a specific
candidate, the relevant electoral commission has a right to hear
submissions of citizens and officials as well as obtain required
documents and materials (Article 112.8).
The
relevant electoral commission shall adopt a decision on any complaint
submitted during the election period and deliver it to the
complainant within three days of receipt of the complaint, except for
complaints submitted on election day or the day after election day,
which shall be examined immediately (Article 112.10).
Complaints
concerning decisions of electoral commissions shall be examined by
courts within three days (unless the Electoral Code provides for a
shorter period). The period for lodging an appeal against a court
decision is also three days (Article 112.11).
Persons
illegally interfering with the election process and otherwise
violating electoral rights of voters and candidates may bear
criminal, civil or administrative responsibility under the Criminal
Code, the Civil Code or the Code of Administrative Offences (Article
115).
3. Vote-counting, tabulation and approval of election
results
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 voting 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 twenty four hours (Article 106.7). The
ConEC verifies whether each PEC protocol and documents attached to it
comply with the law and whether there are any inconsistencies
(Article 107.1). After submission of all PEC protocols, the ConEC
tabulates, within two days of election day, the results from
different polling stations and draws up a protocol (in three original
copies) reflecting the aggregate results of the vote in the
constituency (Articles 107.2 -107.7). 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 verifies
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).
The
Constitutional Court reviews and approves the results of the
elections (Article 171.1). For this purpose, the CEC reviews the
ConEC protocols, together with other relevant documents, during a
period of no more than twenty days after election day, and then
submits them to the Constitutional Court within forty-eight hours
(Article 171.2).
Within
ten days of receipt of the above documents, the Constitutional Court
reviews, with the assistance of experts, whether they are in
accordance with the requirements of the Electoral Code. If necessary,
this ten-day period may be extended (Article 171.3).
B. Code of Civil Procedure
1. Written evidence
A
civil court examines and relies only on evidence submitted by the
parties (Article 14.2).
Each
party to the civil proceedings must submit evidence proving the facts
forming the basis of their claims and objections (Article 77.1). In
disputes concerning invalidation of acts of the State, administrative
and other authorities, the burden of proving the facts forming the
basis of such acts falls upon the relevant authority (Article 77.2).
In the event that the examination of the case on the basis of the
evidence available in the case file is impossible, the court may
request the parties to submit additional evidence (Article 77.3).
Written
evidence must be submitted to courts either in original or in duly
certified copies. If only a part of a document is relevant to the
case under examination, a certified extract must be submitted
(Article 89.3).
2. Proceedings concerning electoral disputes
Chapter
25 of the CCP sets out rules for examination of applications
concerning the protection of electoral rights (or a right to
participate in a referendum). According to Article 290, such
applications shall be submitted directly to the appellate courts in
accordance with the procedure established by the Electoral Code.
Applications
concerning the protection of electoral (referendum) rights shall be
examined within three days of receipt of the application, except for
applications submitted on election day or the day after election day,
which shall be examined immediately (Article 291.1). The court shall
hear the case in the presence of the applicant, a representative of
the relevant electoral commission and any other interested parties.
Failure by any of these parties to attend the hearing after due
notification shall not preclude the court from examining and deciding
the case (Article 291.2).
The
appellate court's decision can be appealed to the higher court (the
court of cassation) within three days. This appeal shall be examined
within three days, or immediately if submitted on election day or the
next day. The decision of the court of cassation is final (Article
292).
III. RELEVANT INTERNATIONAL
DOCUMENTS
A. Code of Good Practice in
Electoral Matters
The relevant excerpts from the Code of Good Practice
in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD
(2002) 23 rev), adopted by the European Commission for Democracy
Through Law (“the Venice Commission”) at its 51st and
52nd sessions (5-6 July and 18 19 October 2002), read as
follows:
“GUIDELINES ON ELECTIONS
...
3. Procedural guarantees
3.1. Organisation of elections by an
impartial body
a. An impartial body must be in charge of applying
electoral law.
b. Where there is no longstanding tradition of
administrative authorities' independence from those holding political
power, independent, impartial electoral commissions must be set up at
all levels, from the national level to polling station level.
c. The central electoral commission must be permanent in
nature.
d. It should include:
i. at least one member of the judiciary;
ii. representatives of parties already in parliament or
having scored at least a given percentage of the vote; these persons
must be qualified in electoral matters.
It may include:
iii. a representative of the Ministry of the Interior;
iv. representatives of national minorities.
e. Political parties must be equally represented on
electoral commissions or must be able to observe the work of the
impartial body. Equality may be construed strictly or on a
proportional basis...
...
h. It is desirable that electoral commissions take
decisions by a qualified majority or by consensus.
...
3.3. An effective system of appeal
a. The appeal body in electoral matters should be either
an electoral commission or a court. For elections to Parliament, an
appeal to Parliament may be provided for in first instance. In any
case, final appeal to a court must be possible.
b. The procedure must be simple and devoid of formalism,
in particular concerning the admissibility of appeals.
...
d. The appeal body must have authority in particular
over such matters as the right to vote – including electoral
registers – and eligibility, the validity of candidatures,
proper observance of election campaign rules and the outcome of the
elections.
e. The appeal body must have authority to annul
elections where irregularities may have affected the outcome. It must
be possible to annul the entire election or merely the results for
one constituency or one polling station. In the event of annulment, a
new election must be called in the area concerned.
f. All candidates and all voters registered in the
constituency concerned must be entitled to appeal. ...
g. Time-limits for lodging and deciding appeals must be
short (three to five days for each at first instance).
h. The applicant's right to a hearing involving both
parties must be protected.
i. Where the appeal body is a higher electoral
commission, it must be able ex officio to rectify or set aside
decisions taken by lower electoral commissions.
...
EXPLANATORY REPORT
...
3.1. Organisation of elections by an
impartial body
68. Only transparency, impartiality and
independence from politically motivated manipulation will ensure
proper administration of the election process, from the pre-election
period to the end of the processing of results.
69. In states where the administrative
authorities have a long-standing tradition of independence from the
political authorities, the civil service applies electoral law
without being subjected to political pressures. It is therefore both
normal and acceptable for elections to be organised by administrative
authorities, and supervised by the Ministry of the Interior.
70. However, in states with little experience
of organising pluralist elections, there is too great a risk of
government's pushing the administrative authorities to do what it
wants. This applies both to central and local government - even when
the latter is controlled by the national opposition.
71. This is why independent, impartial
electoral commissions must be set up from the national level to
polling station level to ensure that elections are properly
conducted, or at least remove serious suspicions of irregularity.
...
3.3. An effective system of appeal
92. If the electoral law provisions are to be
more than just words on a page, failure to comply with the electoral
law must be open to challenge before an appeal body. This applies in
particular to the election results: individual citizens may challenge
them on the grounds of irregularities in the voting procedures. It
also applies to decisions taken before the elections, especially in
connection with the right to vote, electoral registers and standing
for election, the validity of candidatures, compliance with the rules
governing the electoral campaign and access to the media or to party
funding.
93. There are two possible solutions:
- appeals may be heard by the ordinary
courts, a special court or the constitutional court;
- appeals may be heard by an electoral
commission. There is much to be said for this latter system in that
the commissions are highly specialised whereas the courts tend to be
less experienced with regard to electoral issues. As a precautionary
measure, however, it is desirable that there should be some form of
judicial supervision in place, making the higher commission the first
appeal level and the competent court the second.
...
95. Appeal proceedings should be as brief as
possible, in any case concerning decisions to be taken before the
election. On this point, two pitfalls must be avoided: first, that
appeal proceedings retard the electoral process, and second, that,
due to their lack of suspensive effect, decisions on appeals which
could have been taken before, are taken after the elections. In
addition, decisions on the results of elections must also not take
too long, especially where the political climate is tense. This means
both that the time limits for appeals must be very short and that the
appeal body must make its ruling as quickly as possible. Time limits
must, however, be long enough to make an appeal possible, to
guarantee the exercise of rights of defence and a reflected decision.
A time limit of three to five days at first instance (both for
lodging appeals and making rulings) seems reasonable for decisions to
be taken before the elections. It is, however, permissible to grant a
little more time to Supreme and Constitutional Courts for their
rulings.
96. The procedure must also be simple, and
providing voters with special appeal forms helps to make it so. It is
necessary to eliminate formalism, and so avoid decisions of
inadmissibility, especially in politically sensitive cases.
...
99. Standing in such appeals must be granted
as widely as possible. It must be open to every elector in the
constituency and to every candidate standing for election there to
lodge an appeal. A reasonable quorum may, however, be imposed for
appeals by voters on the results of elections.
100. The appeal procedure should be of a
judicial nature, in the sense that the right of the appellants to
proceedings in which both parties are heard should be safeguarded.
101. The powers of appeal bodies are
important too. They should have authority to annul elections, if
irregularities may have influenced the outcome, i.e. affected the
distribution of seats. This is the general principle, but it should
be open to adjustment, i.e. annulment should not necessarily affect
the whole country or constituency – indeed, it should be
possible to annul the results of just one polling station. This makes
it possible to avoid the two extremes – annulling an entire
election, although irregularities affect a small area only, and
refusing to annul, because the area affected is too small. In zones
where the results have been annulled, the elections must be repeated.
102. Where higher-level commissions are
appeal bodies, they should be able to rectify or annul ex officio the
decisions of lower electoral commissions.”
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
The
following are the relevant excerpts from this report, published in
Warsaw, Poland on 1 February 2006:
“III. POLITICAL BACKGROUND
...
The 6 November 2005 elections to the Milli Majlis of
Azerbaijan were the third parliamentary elections held in Azerbaijan
since independence in 1991, but the first conducted after the
adoption of the 2002 constitutional amendments, which eliminated the
proportional list component of parliamentary elections. All 125
members of Parliament are now elected in single seat constituencies,
in a single round of voting.
The CEC registered 48 political parties and blocs for
the 6 November elections. The New Azerbaijan Party (YAP), currently
chaired by President Ilham Aliyev, has held a dominant position in
government since 1993. On the opposition side there were two main
blocs: 'New Politics' (YeS), formed by the Movement for National
Unity, the National Independence Party of Azerbaijan, the Civil Forum
for the Sake of Azerbaijan, the Azerbaijan Social Democratic Party as
well as other political parties and NGOs, and 'Azadliq' ('Freedom'),
which was formed by the parties Musavat, the Popular Front of
Azerbaijan (APFP) and the Azerbaijan Democratic Party (ADP). Another
party, which fielded candidates in over 60 constituencies, was the
opposition Liberal Party of Azerbaijan.
...
V. ELECTION ADMINISTRATION
The election was administered by a three-tiered system
of election commissions ... There are 125 constituency election
commissions and 5,137 polling station election commissions. All
election commissions have a 2/3 requirement for quorum and for
adopting decisions.
The transitional method of composition of election
commissions continued to be problematic, as it favored the incumbent
authorities and undermined confidence in the independence of the
election administration. Election commissions are
formed according to a complex formula, and in essence, pro-government
parties have a majority in all election commissions sufficient to
make all decisions. Moreover, the chairpersons of all election
commissions were nominated by the parliamentary majority.
The CEC held regular meetings open to
media and observers, and most decisions were
published and available on its website. The CEC met most deadlines of
the Election Code regarding technical preparations for the elections.
An extensive voter education effort was conducted through the media.
A number of aspects of the CEC's
performance were problematic, however, including processing of
complaints and appeals, ensuring the uniform implementation of the
Election Code by ConECs and PECs, and organization of military
voting. Observers reported uncertainty and confusion on the
interpretation and application of some legal and procedural issues by
ConECs and PECs.
A number of election commissions
operated in a transparent and collegial manner, and a few
issued warnings to candidates or officials for violating the law.
However, during the pre-election period, commission members nominated
by opposition parties in some constituencies claimed that they were
in a number of instances not informed of ConEC meetings, denied
access to key documents and had little influence on the
decision-making process. The OSCE/ODIHR EOM
[Election Observation Mission] was able to verify some of these
claims.
...
VII. CAMPAIGN
...
The general campaign environment was
characterized by the fact that the ruling YAP
party dominated government and most district administrations,
including the election commissions.
...
The campaign was undermined by numerous
cases of interference of local executive authorities in the election
process, with widespread evidence that such interference either
favored candidates associated with the incumbents or disadvantaged
opposition candidates. ... [M]any candidates
and campaign staff were harassed during the course of their campaign
activities, for example, while meeting with voters, displaying
posters or distributing leaflets.
...
The EOM received a number of reports
from citizens, particularly from the regions, regarding heads of
schools, hospitals and State-owned companies who collected signatures
that allegedly obliged staff to vote for
selected candidates. The OSCE/ODIHR EOM also received reports of
intimidation and coercion of school staff, students and parents to
attend campaign events, predominantly in favor of YAP candidates.
The 11 May and 25 October presidential decrees
acknowledged many such issues and provided instructions to state and
local executive bodies, with a view to ensuring that the
parliamentary elections be conducted in full compliance with the
Election Code. While the decrees addressed some of the shortcomings
observed by the OSCE/ODIHR EOM, the overall lack of meaningful
implementation undermined their objectives.
...
IX. COMPLAINTS AND APPEALS PRIOR TO
ELECTION DAY
In its 2003 Final Report, OSCE/ODIHR recommended that
the CEC enact clear regulations governing the consideration of
complaints and appeals. Similarly, it was recommended that safeguards
be instituted to ensure that local executive authorities do not
interfere in the electoral process or direct the work of the election
commissions. These recommendations were not implemented and this had
a significant and detrimental effect on the election complaints
process.
The Election Code envisages most complaints being filed
with election commissions, but the law also allows complaints to be
lodged with the superior election commission, with decisions in all
cases to be made within a three-day deadline. In a large number of
cases, candidates lodged complaints directly with the CEC, by-passing
the respective ConEC even where the ConEC had not yet brought a
decision on the respective complaint. This indicated a lack of
confidence in the neutrality of the constituency commissions. The CEC
formally registered all such complaints, but in the vast majority of
cases merely returned them to the relevant ConEC for its decision,
even where the ConEC had already made a prior decision.
In many cases, ConECs did not decide
complaints within the three-day deadline or issue an
interim decision. Although some ConECs did try to adjudicate
complaints in a transparent way, a number of ConECs addressed
complaints belatedly and superficially. There were cases in which
ConECs claimed not to have received complaints, when it was clear
they had done so, did not sanction PEC officials who had
discriminated against candidates, failed to notify candidates or
observers when complaints were discussed or simply ignored
complaints. ... In numerous cases, commission chairpersons were
clearly biased in favor of YAP or pro-government candidates, and
complaints from opposition or independent candidates in these
constituencies did not receive impartial adjudication.
Overall, the failure of election commissions, and
subsequently in some instances the prosecutors, to address or rectify
serious violations by local executive authorities and candidates had
a marked and negative impact on the election process. Although some
ConECs did issue written warnings to candidates and local executive
officials, most violations during the campaign were allowed to take
place without effective sanction. This further reduced confidence of
candidates in the fairness of the process.
...
XIII. ELECTION DAY
A. Voting
For the election on 6 November, 5,053
polling stations were established to serve voters across Azerbaijan.
IEOM observers visited over 2,600 polling stations throughout the
country. Voter turnout as reported by the CEC was 42.2 per cent,
which is significantly lower than in previous general elections. Most
IEOM observer teams reported that polling stations generally opened
without delay. However, serious deviations from correct opening
procedures, including failure to establish and announce the total
amount of ballots and invalidate de-registration cards, took place in
a number of polling stations. The opening was
assessed as 'bad' or 'very bad' in 14 per cent of polling
stations visited.
Overall, IEOM observers assessed voting
positively in 87 per cent of polling stations visited, while voting
was assessed negatively in a considerable 13 per cent of polling
stations visited, indicating systemic problems and/or irregularities.
Voting was conducted in a generally calm atmosphere, although tension
was reported at 14 per cent of polling stations visited. Serious
violations of procedures included the presence of unauthorized
persons, mainly representatives of local executive authorities, in 9
per cent of polling stations visited. Some of these persons were
observed interfering in the work of the election commission or
attempting to influence voter choice. The IEOM observed intimidation
and attempts to influence voter choices in 6 per cent of polling
stations visited. Other serious problems included cases of ballot box
stuffing and inconsistent application of voter card rules, which was
observed in one third of polling stations visited. Group or family
voting remained an issue, as it was observed in 19 per cent of
visits. Although relatively few people voted by mobile voting
procedures, IEOM observers noted some cases in which more votes were
cast than there were applications for ballots.
Inking procedures, in particular the
checking of voters' fingers for ink, were not properly followed in 11
per cent of polling stations visited, with several PECs not applying
the inking procedure at all. ...
Candidate representatives and
non-partisan domestic observers were present in nearly all polling
stations visited (97 per cent). However, there were observations of
candidate representatives and PEC members being expelled or dismissed
from polling stations in some cases. The IEOM observed local
executive officials and observers of YAP candidates interfering in or
directing the process, or otherwise attempting to influence voters.
...
B. Counting
IEOM observer teams were present at the count in 231
polling stations. The conduct of the election day process
deteriorated sharply during the count. IEOM observers assessed the
ballot counting process as bad or very bad in 41 per cent of counts
observed.
IEOM observers noted a wide range of
serious violations during the count, including tampering with results
protocols (12 per cent), result protocols not completed with ink (14
per cent), intimidation of observers (16 per cent) and unauthorized
persons directing the process (14 per cent). Key procedures were not
followed by more than one third of PECs. In some polling stations,
the IEOM observed attempts by PEC members to inflate the vote for a
selected candidate by swapping ballot papers from one stack to
another. Candidate representatives or opposition-nominated PEC
members were expelled from the count in a number of cases. In some
cases, the count was interrupted and the process significantly
delayed, in breach of the law. In several cases, protocols were not
completed in the presence of observers, were left blank, or were not
taken directly to the ConEC. The results protocols were not posted as
required by law in 55 per cent of the counts observed. Observers
reported that entitled persons received the signed and stamped copies
of the protocol in only 83 per cent of the polling stations observed.
C. Tabulation of Results
The tabulation of results at
constituency level was, overall, assessed as bad or very bad in 34
per cent of the 90 ConECs visited. Tabulation procedures were not
followed consistently, and the organization of the work was assessed
as poor or very poor in 21 per cent of
cases observed. Several ConECs accepted empty or only partly
completed protocols (including protocols completed with pencil) and
did not take action against PEC chairs or members completing or
changing protocols at the ConEC. ...
XV. COMPLAINTS AND APPEALS AFTER ELECTION
DAY
A. Adjudication of Complaints by the CEC
On and after election day, the CEC
received and registered more than 1,000 complaints but
did not address most of these complaints. Complaints that did receive
attention were not considered transparently or in accordance with the
law.
Although the law requires the CEC to
decide on all complaints , the CEC failed to
fully meet this legal obligation. ...
The CEC did not inform complainants on
consideration of their complaints at the CEC
session, and complainants were not granted the right to give
explanations or present new evidence. Moreover, the CEC did not
conduct a formal investigation or review of complaints at its
sessions. Instead an individual commission member, as a rule a member
representing the voting majority, investigated the complaint and
reported on his or her findings. These reports did not give other CEC
members complete information on the complaint. Notwithstanding the
large number of complaints, the CEC met infrequently and completed
its final protocol without considering all pending complaints. ...
...
B. Adjudication of Appeals by the Court of
Appeal and the Supreme Court
The adjudication of post-election
disputes in the courts largely disregarded the legal framework, and
fell short of internationally accepted norms. In total, the Court of
Appeal received 71 appeals and complaints in the post-election
period. The Supreme Court received nine appeals during the
post-election period until 23 November. The OSCE/ODIHR EOM observed
eight hearings in the Court of Appeal and seven hearings in the
Supreme Court. 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. ...”
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, in the electoral
constituency where he stood as a candidate in the parliamentary
elections, there had been a number of serious irregularities and
breaches of electoral law which had made it impossible to determine
the true opinion of voters and thus had infringed his right to stand
as a candidate in free elections. The domestic authorities, including
the electoral commissions and courts, had failed to duly examine his
complaints and to investigate his allegations concerning the
mentioned irregularities and breaches of electoral law. He also
argued that one of the reasons for this failure was the method of
composition of electoral commissions at all levels, which allegedly
placed the majority of votes within each commission under the control
of the ruling political forces and made the commissions prone to take
politically motivated decisions disadvantaging
opposition candidates.
Having
regard to the special features of the present case, 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
Government argued that the applicant had not exhausted domestic
remedies in respect of the part of the complaint relating to the
method of composition of the electoral commissions. They argued that
the applicant could have raised this issue before the domestic
courts, but he had failed to do so.
The
applicant argued that the remedy suggested was ineffective.
The
Court reiterates that Article 35 § 1 of the Convention, which
sets out the rule on exhaustion of domestic remedies, provides for a
distribution of the burden of proof. It is incumbent on the
Government claiming non exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see Akdivar
and Others v. Turkey, 16 September 1996, § 68, Reports of
Judgments and Decisions 1996-IV, and Selmouni v. France [GC],
no. 25803/94, § 76, ECHR 1999-V). The Court further
emphasises that the domestic remedies must be “effective”
in the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
has already occurred (see Kudła v. Poland [GC],
no. 30210/96, § 158, ECHR 2000-XI). The Court is not
persuaded by the Government's arguments. The Government failed to
provide explanation as to how a complaint to the domestic courts
concerning the method of composition of electoral commissions, made
during the electoral process, could provide the applicant with
adequate and timely redress. Within the framework of the appeal
system for election-related complaints, the Court of Appeal and the
Supreme Court were competent (at least theoretically under the
domestic law) to hear appeals against decisions of electoral
commissions concerning a wide variety of electoral matters. However,
it appears that the relevant courts had no competence to alter the
method of composition of electoral commissions, which was prescribed
in detail by the Electoral Code, and especially so in the midst of
the electoral process. The Government have not suggested any other
form of redress that could have possibly been provided by the
domestic courts and that could be considered adequate. For these
reasons, the Government's objection must be dismissed.
Furthermore,
the Court considers that the complaint, as a whole, is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties' submissions
The
Government submitted that the elections at Barda City Electoral
Constituency no. 93 had been conducted in accordance with the
requirements of the Electoral Code. The Government argued that the
documents submitted by the applicant (mainly observers' affidavits),
allegedly proving the irregularities in the constituency, had been in
fact compiled only by the applicant's supporters and representatives
in various polling stations. In any event, the allegations made by
the applicant in reliance on those affidavits contained either
“general expressions” or referred to types of alleged
infringements which could not seriously affect the election results.
They were frequently of speculative nature rather than referring to
specific facts. The alleged breaches of electoral law were
insignificant and concerned minor local incidents and, thus, did not
have a substantial impact on the conduct of the election in the
constituency as a whole. The Government argued that, in any event,
the difference between the official total numbers of votes received
by the winning candidate and the applicant (5,816 votes against
2,001) had been so significant that, even if the applicant could
prove that the irregularities alleged by him had indeed taken place,
they could not have affected the ultimate result of the election.
Further,
relying on Babenko v. Ukraine ((dec.), no. 43476/98, 4 May
1999), the Government argued that, taking into account the
existence of the domestic authorities' decisions concerning the
essence of the applicant's claims, the Court should limit itself to
examining only whether those decisions were arbitrary.
In
this respect, the Government maintained that there were effective
remedies available at the domestic level which were capable of
providing redress for the kind of election-related matters the
applicant complained of. The relevant domestic authorities and courts
had duly examined the applicant's complaints and found them
unsubstantiated. Contrary to the applicant's claim that the electoral
commissions had ignored his complaints, the ConEC actually examined
them and even demanded explanations from the relevant PECs. Although
the ConEC found that the conditions of some voting areas in some
polling stations had indeed been poor, all the applicant's remaining
allegations were found to be groundless and untrue. The applicant's
subsequent appeals to the domestic courts were not supported by
admissible or sufficient evidence and therefore the courts had
correctly dismissed his complaints as unsubstantiated.
As
to the method of composition of electoral commissions, the Government
argued that the commissions were composed on a parity basis that did
not allow any political force to obtain control over the
decision making process within any commission at any level. They
noted that the parliamentary majority party could only directly
nominate one-third of the members of each commission, while the
majority of at least two thirds of commission members' votes was
required by law for adoption of any commission decisions. Although by
law every chairperson of every commission was elected from among the
representatives of the ruling party, this did not affect the
decision-making process within the commission as the chairperson did
not possess a decisive or tie-breaking vote. The Government concluded
that electoral commissions were generally independent and impartial
and that, in any event, there could have been no lack of impartiality
in the present case, as the applicant's opponent, Z.O., was not even
a member of the ruling party.
The
applicant submitted that he had been unable to benefit from an
environment in which elections were free and fair and that the
relevant State authorities had not duly reacted to the existence of
numerous infringements of the electoral law in his constituency. He
reiterated his allegations concerning specific instances of alleged
irregularities that had taken place in his constituency and
maintained that the sheer scale of these irregularities undermined
the free expression of the opinion of the people voting in the
constituency. In support of his arguments, the applicant also relied
heavily on a number of reports by international organisations and
mass media sources which contained general criticism of the various
aspects of the parliamentary elections of 6 November 2005 in
Azerbaijan.
The
applicant further maintained that those irregularities prejudiced the
outcome of the election. Had all his allegations been examined and
assessed fairly, his corrected official vote total would have
actually been higher than that of Z.O. and he would have won the
election.
The
applicant argued that he had been unable to obtain an effective
examination of his election-related complaints. Again, relying
heavily on excerpts from various reports and recommendations
concerning the elections of 6 November 2005 prepared by various
observation missions, he argued that, in general, there had been many
shortcomings in how the existing mechanism for addressing
election-related complaints functioned in practice. As to his
specific case, he argued that he had presented sufficient evidence to
the domestic electoral commissions and courts in support of his
claims, but the latter had used formal grounds in order to avoid
examining the essence of his complaints and had not given him an
opportunity to submit duly certified copies of the relevant evidence,
if this was deemed absolutely necessary.
Lastly,
the applicant claimed that in reality the majority of members of
every electoral commission at every level were either the direct
nominees of the ruling party or “persons supporting the ruling
party”. The applicant appeared to imply (without clearly
stating it) that commission members formally nominated by
non-partisan members of parliament were usually, in practice,
pro-ruling-party persons, albeit not formally affiliated with the
ruling party. The applicant also claimed that, although Z.O. was a
member of the Motherland Party, this party was politically very close
to the ruling Yeni Azerbaijan Party. That is why, in his opinion, the
ruling party was in favour of him winning the election against the
opposition candidates.
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 democratic principles underlying the interpretation and
application of the Convention and 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, among other things, that the conditions in which
individual rights are exercised in the course of the electoral
process do not curtail the rights in question to such an extent as to
impair their very essence and deprive them of their effectiveness
(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). In the case of Podkolzina v. Latvia, the
Court stated that 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, mutatis mutandis,
Kovach v. Ukraine, no. 39424/02, § 55, ECHR 2008 ...).
Lastly,
the Court has also had an occasion to emphasise 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).
In
the present case, the Court will first have regard to the
Government's argument that the difference in the official vote totals
received by Z.O. and the applicant was so significant that, even if
the applicant's allegations concerning some election irregularities
in various polling stations were true, it would not affect the
ultimate result of the election. The Court cannot accept this
argument. In order to arrive at the conclusion proposed by the
Government, it is first necessary to separately assess the
seriousness and magnitude of the alleged election irregularity prior
to determining its effect on the overall outcome of the election.
However, in the present case, the question whether this has been done
in a diligent manner is a major point of contention between the
parties in the context of the present complaint and, therefore,
cannot escape the Court's review.
Moreover,
in any event, what is at stake in the present case is not the
applicant's right to win the election in his constituency, but his
right to stand freely and effectively for it (compare The Georgian
Labour Party, cited above, § 121). The applicant was
entitled under Article 3 of Protocol No. 1 to stand
for election in fair and democratic conditions, regardless of whether
ultimately he won or lost. In the present case, Article 3 of Protocol
No. 1 requires the Court not to ascertain merely that the election
outcome as such was not prejudiced, but to verify that the
applicant's individual right to stand for election was not deprived
of its effectiveness and that its essence had not been impaired. For
these reasons, the Government's above argument must be dismissed.
Turning
to the assessment of the substance of the applicant's complaint under
the Convention, the Court notes that the applicant complained of
numerous instances of irregularities and breaches of electoral law
which had allegedly taken place prior to and during election day in
numerous polling stations in his electoral constituency. In doing so,
he essentially reiterated the detailed claims he had made before the
domestic authorities (see paragraphs 9-18 and 24 above). He
maintained that due to these irregularities in themselves, as well as
the domestic authorities' failure to duly address them, the election
in his constituency had not been free and democratic and the official
election results had not reflected the real opinion of voters.
As
for the applicant's claims concerning the specific instances of
alleged irregularities, the Court notes that, although the evidence
presented by the applicant in support of his claims can be considered
strong (see paragraphs 78-79 below), in the circumstances of the
present case it is not in a position to assume a fact-finding role by
attempting to determine whether all or part of these alleged facts
had taken place and, if so, whether they had amounted to
irregularities capable of thwarting the free expression of the
opinion of the people. Owing to the subsidiary nature of its role,
the Court must be cautious in taking on the function of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case. Moreover, the
Court is not required under the Convention to verify whether any
alleged irregularity had amounted to a breach of Azerbaijani
electoral law (see I.Z. v. Greece, no. 18997/91, Commission
decision of 28 February 1994, Decisions and Reports 76-B, p. 65,
at p. 68). Again, the Court reiterates that its task under Article 3
of Protocol No. 1 is rather to satisfy itself, from a more general
standpoint, that the respondent State has complied with its
obligation to hold elections under free and fair conditions and
ensured that individual electoral rights were exercised effectively.
That
being said, the Court cannot but acknowledge the seriousness of the
claims made by the applicant before the domestic authorities. In
particular, he complained of unlawful interference in the election
process by local executive authorities, undue influence on voter
choice, several instances of ballot-box stuffing, harassment of
observers, irregularities in electoral rolls and obvious
discrepancies in PEC protocols showing a possible failure to account
for as many as thousands of “unused” blank ballots. The
Court considers that these types of irregularities, if duly confirmed
to have taken place, were indeed potentially capable of thwarting the
democratic nature of the elections. The Court further notes that the
applicant's allegations were based on the relevant evidence, which
consisted mainly of affidavits signed by official observers, who gave
fact-specific accounts of the alleged irregularities witnessed by
them. The Court also has regard to the Final Report of the OSCE/ODIHR
Election Observation Mission concerning the elections of 6 November
2005 (see paragraph 55 above), which indirectly corroborates the
applicant's claims. While this report did not contain any information
relating exclusively to the applicant's constituency, it gave a
general account of the most frequent problems identified during the
election process. The problems identified were similar to almost all
of the applicant's specific allegations and, while not observed in
most of the constituencies, appeared nonetheless to have been quite
common.
In
the light of the above considerations, and having regard to the
material in the case file, the Court considers that the applicant has
put forward a very serious and arguable claim disclosing an
appearance of a failure to hold free and fair elections in his
constituency.
The
Court reiterates the approach taken by it in the Babenko case
(cited above) where, having satisfied itself that there had been no
arbitrariness in the conclusions reached by a domestic court which
had examined the applicant's specific claims concerning breaches of
electoral law and established that they had not prejudiced the
elections, the Court accepted and relied on the domestic court's
conclusions in its analysis of the applicant's complaint under
Article 3 of Protocol No. 1. It was emphasised in that case that,
where complaints of election irregularities had been addressed at the
domestic level, the Court's examination should be limited to
verifying whether any arbitrariness could be detected in the domestic
court procedure and decisions.
In
this connection, having regard to the principles developed by its
case-law on Article 3 of Protocol No. 1 (see paragraphs 70-73 above),
the Court considers that the existence of a domestic system for
effective examination of individual complaints and appeals in matters
concerning electoral rights is one of the essential guarantees of
free and fair elections. Such a system ensures an effective exercise
of individual rights to vote and to stand for election, maintains
general confidence in the State's administration of the electoral
process and constitutes an important device at the State's disposal
in achieving the fulfilment of its positive duty under Article 3 of
Protocol No. 1 to hold democratic elections. Indeed, the State's
solemn undertaking under Article 3 of Protocol No. 1 and the
individual rights guaranteed by that provision would be illusory if,
throughout the electoral process, specific instances indicative of
failure to ensure democratic elections are not open to challenge by
individuals before a competent domestic body capable of effectively
dealing with the matter.
The
Azerbaijani law provided for a system of examination of individual
election-related complaints and appeals, consisting of electoral
commissions of different levels, whose decisions could be appealed
subsequently to the Court of Appeal and further to the Supreme Court.
The applicant made use of this system. It remains to be seen whether
the examination of the applicant's claims by the electoral
commissions and courts was effective and devoid of arbitrariness.
According
to the applicant, the electoral commissions did not even reply to his
complaints. The Government, however, presented proof that his
complaint had been examined by the ConEC. However, having regard to
the documents submitted by the Government, the Court notes that,
while the ConEC took as long as sixteen days to deliver its decision
(which was considerably longer than the three-day time-limit provided
by the Electoral Code), it did nothing more than request written
explanations from the relevant PEC chairmen and members. Given that
the confirmation of these allegations could potentially entail
responsibility on the part of these PEC officials for the election
irregularities, it is not surprising that all of them simply denied
any wrongdoing using the most general wording. For this reason, and
having regard to their content, the Court is not convinced that these
statements were particularly helpful in determining the factual
accuracy of the applicant's claims. Nevertheless, the ConEC appeared
to have relied exclusively on the statements of PEC officials in
deciding to dismiss the applicant's complaint, without explaining why
these statements were considered to be more reliable than the much
more detailed and fact specific evidence presented by the
applicant. In fact, no reason was offered by the ConEC in support of
its finding that the applicant's claims were “unsubstantiated”.
There is no indication that any detailed assessment of the substance
of the applicant's allegations was attempted or that any genuine
effort was made to determine the validity of his claims (contrast
Babenko, cited above, where a domestic court examined each
specific allegation of election irregularity in detail and assessed
its effect on the election).
As
for the complaint lodged directly with the CEC, the Court notes that
the applicant has submitted documentary evidence proving that his
complaint was received by the CEC on 8 November 2005. However, it
appears that the CEC indeed ignored the applicant's complaint and
left it unexamined. This is despite Article 112.2 of the Electoral
Code, which provided an opportunity to lodge any election-related
complaints directly with a “superior electoral commission”,
which term appeared to include the CEC. The Court again refers to the
OSCE/ODIHR report, which noted that “in the vast majority of
cases” the CEC merely transmitted individual complaints to the
relevant ConECs without examining them, and that it “did not
address most of [the] complaints” it received on and after
election day. In the instant case, no explanation has been
forthcoming from the Government as to the reasons for the CEC's
failure to deal with the applicant's complaint despite the
requirements of the Electoral Code.
The
applicant's subsequent appeals lodged with the Court of Appeal and
the Supreme Court were not addressed adequately either. In
particular, both courts relied on extremely formalistic reasons to
avoid examining the substance of the applicant's complaints, finding
that he had not submitted duly certified copies of the relevant
observers' affidavits and that he had not attached to his cassation
appeal documentary proof that he had indeed applied to the CEC. It is
not the Court's task to assess whether, from the standpoint of the
domestic law, the domestic courts were correct to apply so strictly
the civil procedure rules on admissibility of written evidence to a
case giving rise to election-related issues which normally fall
within the realm of public law. In the circumstances of the present
case, however, the Court finds that such a rigid and overly
formalistic approach was not justified under the Convention.
In
this respect, the Court recalls the Venice Commission's Code of Good
Practices in Electoral Matters, which cautions against excessive
formalism in examination of election-related appeals, in particular
where the admissibility of appeals is concerned (see paragraph 54
above).
As
mentioned above, the Court considers that the applicant was able to
put forward an arguable claim disclosing an appearance of a
potentially serious violation of electoral rights and this claim was
supported by relevant argumentation and evidence. This evidence
included copies of observers' affidavits which appeared to be prima
facie authentic. Although the applicant did not submit to the courts
notarised copies of those affidavits, he claimed at the oral hearing
in the Supreme Court that he had submitted the originals to the CEC.
In such circumstances, the Court finds it puzzling that the domestic
courts did not attempt to request the CEC to confirm whether it was
in possession of those originals or to otherwise establish the
authenticity of those affidavits. At the very least, the courts
should have allowed the applicant an opportunity to supplement his
written submissions with any additional evidence deemed necessary
(such as documentary proof that he had indeed applied to the CEC).
The
Court considers that, in order to ensure the State's compliance with
its positive obligation under Article 3 of Protocol No. 1 to hold
free elections, the domestic courts dealing with the present case,
having been called upon to decide on an arguable claim concerning
election irregularities, should have reacted by taking reasonable
steps to investigate the alleged irregularities without imposing
unreasonable and excessively strict procedural barriers on the
individual complainant. What was at stake in those proceedings was
not only the alleged infringement of the applicant's individual
rights but also, on a more general level, the State's compliance with
its positive duty to hold free and fair elections. Therefore, even
assuming that the courts in the present case might have been unable
to decide the case solely on the basis of the evidence submitted by
the applicant, the material put before them was nevertheless strong
enough to require them to take additional steps to obtain more
information and verify the accuracy of the applicant's allegations
which cast doubt on the free and fair character of the elections in
his constituency.
Moreover,
in any event, not all of the applicant's allegations were based on
those observers' affidavits. His complaint also mentioned other
alleged serious irregularities, including apparent inconsistencies in
several PEC protocols disclosing potential large-scale tampering with
ballots on the PEC level. In terms of initial evidence necessary for
examination of this specific issue, the courts had to do nothing more
than request the electoral commissions to submit those protocols to
them for an independent examination. If such examination indeed
revealed inconsistencies, a more thorough assessment of their impact
on the election results would be necessary. However, the relevant
court decisions were silent in respect of this part of the
applicant's complaint.
The
Court acknowledges that, owing to the complexity of the electoral
process and associated time-restraints necessitating streamlining of
various election-related procedures, the relevant domestic
authorities may be required to examine election-related appeals
within comparatively short time-limits in order to avoid retarding
the electoral process. For the same practical reasons, the States may
find it inexpedient to require these authorities to abide by a set of
very strict procedural safeguards or to deliver very detailed
decisions. Nevertheless, these considerations may not serve to
undermine the effectiveness of the appeal procedure, and it must be
ensured that a genuine effort is made to address the substance of
arguable individual complaints concerning electoral irregularities
and that the relevant decisions are sufficiently reasoned. In the
present case, however, the conduct of the electoral commissions and
courts and their respective decisions revealed an appearance of lack
of any genuine concern for the protection of the applicant's right to
stand for election.
The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant's complaints concerning election
irregularities were not effectively addressed at the domestic level
and were dismissed in an arbitrary manner.
In
view of the conclusion reached in the above paragraph, the Court
finds that it is not necessary for the purposes of the present case
to further examine the applicant's arguments concerning the method of
composition of the electoral commissions.
There
has accordingly been a violation of Article 3 of Protocol No. 1 to
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 14 of the Convention
In
conjunction with the above complaint, the applicant complained that
during the entire election process he, as an opposition candidate,
had been discriminated against due to his political affiliation and
had not been allowed to run for election under equal conditions with
the candidates affiliated with the incumbent party. He 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.
B. Article 6 of the Convention
The
applicant complained under Article 6 of the Convention that the
domestic judicial proceedings had been unfair and arbitrary. Article
6 of the Convention provides, in its relevant part, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
The
Court notes that the proceedings in question involved the
determination of the applicant's right to stand as a candidate in the
parliamentary elections. The dispute in issue therefore concerned the
applicant's political rights and did not have any bearing on his
“civil rights and obligations” within the meaning of
Article 6 § 1 of the Convention (see Pierre-Bloch v. France,
21 October 1997, § 50, Reports 1997-VI; Cherepkov v.
Russia (dec.), no. 51501/99, ECHR 2000-I; Zdanoka
v. Latvia (dec.), no. 58278/00, 6 March 2003; and Mutalibov
v. Azerbaijan (dec.), no. 31799/03, 19 February 2004).
Accordingly, this Convention provision does not apply to the
proceedings complained of.
It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article
35 § 4.
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 22,500 new Azerbaijani manats (AZN) in respect of
various expenses related to his electoral campaign, such as expenses
for publication of his campaign advertisement, salaries paid to his
campaign staff, renting office space for his election headquarters,
etc.
The
Government noted that the applicant failed to support this claim with
any documentary evidence. They further argued that campaign expenses
could not be claimed as pecuniary damage and that, in any event, part
of each candidate's campaign expenses were borne by the State in
accordance with the domestic law.
The
Court notes that the present application was about the applicant's
right to stand for election. It cannot be assumed that, had the
applicant's right not been infringed, he would necessarily have won
the election in his constituency and become a member of parliament.
Therefore, it cannot be speculated that the expenditure on his
electoral campaign was a pecuniary loss (compare The Georgian
Labour Party, cited above, § 150). As no causal link has
been established between the alleged pecuniary loss and the violation
found, the Court dismisses the applicant's claim under this head.
2. Non-pecuniary damage
The
applicant claimed AZN 200,000 in respect of non-pecuniary damage
caused by the infringement of his electoral rights.
The
Government argued that the amount claimed was excessive and
considered that finding of a violation of the Convention would
constitute sufficient just satisfaction in itself.
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 him the sum of 7,500 euros (EUR) in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant claimed AZN 2,000 for legal fees incurred in the
proceedings before the Court, AZN 1,500 for translation expenses and
AZN 1,000 for postal expenses. In support of his claims, he
submitted a contract for legal services rendered in the proceedings
before the Court and a contract for translation services. Both
contracts stipulated that the amounts due were to be paid in the
event that the Court found a violation of the applicant's rights.
The
Government argued that the costs and expenses related to the legal
and translation services had not actually been incurred, because the
amounts claimed had not been paid by the applicant. They further
argued that, in any event, the contract for legal services provided
for excessive legal fees and included certain types of services which
were not needed or expected in this case. As for the postal expenses,
the Government noted that this part of the claim was unsupported by
any evidence.
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. The Court notes that, although the
applicant has not yet actually paid the legal fees and translation
costs, he was bound to pay them pursuant to a contractual obligation.
Accordingly, in so far as the lawyer and translator are entitled to
seek payment of their fees under the contract, those fees were
“actually incurred”. However, taking into account the
amount of legal work done in the present case and the total amount of
material actually translated, the Court considers that the claims in
respect of both the legal fees and translation expenses are excessive
and therefore can be satisfied only partially. Furthermore, the Court
notes that the applicant failed to support his 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 covering costs under all heads, 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 complaints under Article 3 of
Protocol No. 1 to the Convention and Article 14 of the Convention
admissible and the remainder of the application inadmissible;
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
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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
