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Cite as: [2011] ECHR 1776
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FIRST SECTION
DECISION
Application no.
35559/05
by Rasul GULIYEV
against
Azerbaijan (no. 2)
The European Court of Human Rights (First Section), sitting on 4 October 2011 as a Chamber composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having regard to the above application lodged on 30 September 2005,
Having regard to the partial decision of 8 June 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Rasul Guliyev, is an Azerbaijani national who was born in 1947 and lives in New York. He was represented before the Court by Mr M. Mustafayev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
From 1990 to 1993 the applicant held a number of the highest managerial posts in Azerbaijan’s oil sector. For a few months in 1993 he held office as First Deputy Prime Minister, and from 1993 to 1996 was the Speaker of the Milli Majlis (Parliament). In 1996 he resigned from office and left the country. Since then he has resided in the United States of America. While there, several years later he founded and has led the Democratic Party of Azerbaijan, whose headquarters are in Baku.
As the result of a criminal investigation that had commenced in 1996, on 7 April 1998 the Prosecutor General’s Office charged the applicant with a number of criminal offences, including misappropriation of public funds and abuse of power in his work with the oil companies and for the government. As the applicant was considered to be at large, on the same date the investigation authority issued a search warrant for him and simultaneously suspended the investigation until such time as his presence could be secured.
On 27 July 1998 the applicant obtained refugee status in the US. He has not submitted to the Court any detailed information as to the US Government’s grounds for granting him this status.
On 10 October 2000 the Sabail District Court ordered the applicant’s remand in custody pending trial, in accordance with the new Code of Criminal Procedure of 2000, under which remand in custody could be authorised only on the basis of a court order. On 17 October 2000 the Court of Appeal upheld that order.
In the meantime, starting in May 1998, the Azerbaijani authorities applied to Interpol and to the governments of a number of foreign States with requests for legal assistance in securing the applicant’s presence before the Azerbaijani law-enforcement authorities. Such requests were made repeatedly in the following years, with the latest several requests made in 2005. However, they did not yield any results and the authorities were unsuccessful in their attempts to have the applicant extradited.
Thus, the applicant was never arrested by the Azerbaijani law enforcement authorities, because he did not return to Azerbaijan after his departure in 1996 and all attempts by the authorities to secure his presence had been unsuccessful in the meantime.
In 2002 the applicant attempted through his lawyers to have the detention order quashed, but without success (see Guliyev v. Azerbaijan (dec.), no. 35584/02, 27 May 2004).
2. Events prior to the parliamentary elections of 6 November 2005
In August 2005, through his representatives, the applicant applied for registration to stand for the elections to the Milli Majlis of 6 November 2005 as a candidate for the opposition coalition Azadliq. On 27 August 2005 he was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Khatai Fourth Electoral Constituency no. 36.
On the same day, 27 August 2005, in connection with the criminal proceedings pending in respect of the applicant, the Prosecutor General delivered a decision with a view to “securing the execution” of the detention order of 10 October 2000, which was still in force. The Prosecutor General noted that Article 70.4 of the Election Code, which provided election candidates with immunity from prosecution and arrest during the election process, did not apply to the applicant’s situation, as it afforded immunity only for actions committed during the period between the date of the candidate’s registration for election and the date of the announcement of the election results, whereas the applicant was being prosecuted for actions committed several years prior to his registration as a candidate. Accordingly, the Prosecutor General confirmed that the detention order of 10 October 2000 was enforceable throughout the entire election period.
The applicant challenged the Prosecutor General’s decision of 27 August 2005 in the courts. On 8 September 2005 the Sabail District Court dismissed that challenge and agreed with the Prosecutor General’s interpretation that immunity under Article 70.4 of the Election Code did not apply in the applicant’s case. On 19 September 2005 the Court of Appeal upheld the Sabail District Court’s decision.
On 26 September 2005 the applicant submitted a complaint to the Constitutional Court arguing that the domestic law had been misinterpreted. On 12 October 2005 the Constitutional Court refused to admit the applicant’s complaint.
On 12 October 2005 two members of the Academy of Sciences lodged a petition with the Sabail District Court for the applicant to be granted bail, and expressed their readiness to stand surety for the applicant. On 14 October 2005 and 19 October 2005 respectively the Sabail District Court and the Court of Appeal rejected that request.
In the meantime, on 17 October 2005 the applicant boarded a charter flight from London to Baku. However, it appears that during the flight he changed his mind about landing in Baku and instead landed in Simferopol, Ukraine. Immediately after landing he was detained by the Ukrainian authorities at the request of their Azerbaijani counterparts. However, on 20 October 2005 the applicant was released after the Zheleznodorozhny District Court of Simferopol reviewed the grounds for his arrest and for the extradition request in respect of him. It noted that the documents submitted by the Azerbaijani authorities did not meet the formal requirements necessary for the institution of extradition proceedings. Moreover, the court noted that it was evident from the applicant’s identity papers that he had refugee status and had been granted asylum in the US, and it considered that the extradition request was politically motivated.
Following this incident, the applicant returned to the US.
3. Parliamentary elections of 6 November 2005
There were a total of thirty-two polling stations in the constituency, of which three were special stations installed in military barracks and prisons. At the end of election day (6 November 2005), the applicant’s representatives obtained copies of the election protocols drawn up by each of the thirty-two Polling Station Electoral Commissions (“the PECs”). According to the copies of the PEC protocols in the applicant’s possession, he received the highest number of votes in the constituency. Specifically, according to the applicant, he received a total of 4,552 votes, while his closest rival, a candidate from the ruling party (S.), received 4,375 votes. The applicant claims to have received the highest number of votes in twenty polling stations, while S. received the highest number in eight polling stations and a third candidate received the highest number in the remaining four polling stations.
By a decision of 7 November 2005, the ConEC invalidated the results in five of the polling stations (nos. 3, 4, 20, 21 and 25) owing to infringements of the electoral law in those stations on election day. According to the PEC protocols in the applicant’s possession, he had obtained more votes than S. in each of the five stations concerned.
According to the applicant, the ConEC decision did not state any reasons or identify the specific infringements that were alleged to have occurred.
After an official tabulation of the results by the ConEC (which did not take into account the votes cast in Polling Stations nos. 3, 4, 20, 21 and 25 where the election results had been invalidated), the election protocol drawn up by the ConEC indicated that the applicant had received 3,669 votes and S. 3,907 votes. The ConEC protocol named S. as the winner.
The ConEC submitted its protocol, together with relevant documents concerning the election in the constituency, for review by the Central Electoral Commission (“the CEC”).
On 10 November 2005 four PEC members, six observers (who were also the applicant’s representatives) and about twenty voters from Polling Stations nos. 3, 4 and 25 submitted similarly worded complaints to the CEC, noting that there had been no irregularities in the election process in those polling stations and that the ConEC’s decision of 7 November 2005 to invalidate the results in those polling stations was groundless and thus unlawful.
On 22 November 2005 the CEC summarily rejected these complaints as unsubstantiated.
On 23 November 2005 the CEC issued its final election protocol and submitted it, together with other relevant documents, to the Constitutional Court for review and approval of the election results. The CEC protocol indicated S. as the winner of the election in the Khatai Fourth Electoral Constituency no. 36.
On 24 November 2005 the applicant lodged an appeal with the Court of Appeal against the CEC’s decision of 22 November 2005. He requested the court to quash the electoral authorities’ decision to invalidate the election results in the five polling stations, to include the votes cast in those polling stations in the overall election results for the constituency, and to declare him the winner of the election there. He argued, inter alia, that the electoral authorities’ decision to invalidate the election results in the five polling stations had been unreasoned and arbitrary, as it had failed to make clear what specific infringements of electoral law had served as a ground for the invalidation.
On 26 November 2005 the Court of Appeal dismissed the applicant’s appeal on the grounds that it was unsubstantiated as the applicant had failed to submit any evidence in support of his claims. The Court of Appeal does not appear to have conducted an independent review of the grounds for the invalidation of the election results in the five polling stations, or to have requested and independently examined any evidence of the irregularities which, according to the electoral authorities, occurred in those polling stations.
On 29 November 2005 the applicant lodged a cassation appeal with the Supreme Court, reiterating his complaints against the electoral authorities and arguing that the Court of Appeal had unlawfully shifted onto him the burden of proving that there had been no irregularities in the five polling stations, instead of requiring the electoral authorities to substantiate the grounds for invalidating the election results in those polling stations.
On 30 November 2005 the Supreme Court dismissed the applicant’s cassation appeal as unsubstantiated.
B. Relevant domestic law
Article 70.4 of the Electoral Code, as worded at the material time, provided that during the period from the date of registration as an election candidate to the date of the official publication of the election results, a registered candidate could not, without the consent of the relevant prosecutor, be held criminally liable or arrested or punished under the administrative procedure for any acts committed after his or her registration as a candidate. However, the candidate could be arrested if caught in the act of committing a crime.
COMPLAINTS
THE LAW
I. ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION
By a letter of 12 January 2010 the Government informed the Court of their unilateral declaration, made with a view to resolving the issues raised by complaint no. 4 above.
The declaration provided as follows:
“The Government wish to express – by way of a unilateral declaration – its acknowledgement that, in the present case, proceedings before the domestic courts with regard to the applicant’s election-related complaints did not comply with the requirement of fairness.
Consequently, the Government are prepared to pay the applicant in compensation a total sum of EUR 7,200 (seven thousand two hundred euros). In the Government’s view, the aforementioned total sum would constitute adequate redress and sufficient compensation for the impugned proceedings, and thus constitute an acceptable sum as to quantum in the present case.
The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
In the light of the above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 (c) in fine, which would require further examination of the case by virtue of that provision. Accordingly, the Government invite the Court to strike the application out of its list of cases.”
By a letter of 3 February 2010 the applicant asked the Court to reject the unilateral declaration. He argued that the terms of the unilateral declaration were unsatisfactory, as the aim of his complaint was to obtain not a mere acknowledgment that his electoral rights had been breached, but a “confirmation of his victory in the election” and “membership of Parliament”.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court to strike a case out of its list in particular if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court also reiterates that under certain circumstances it may be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment, which elaborates on a number of relevant factors to be assessed in this regard (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 76, ECHR 2003-VI). The list of such relevant factors is not intended to be exhaustive and, depending on the particulars of each case, further considerations may come into play in the assessment of a unilateral declaration for the purposes of Article 37 § 1 (c) of the Convention (ibid., § 77).
Turning to the present application, the Court observes that the declaration contains a clear acknowledgment by the Government that the applicant’s electoral rights were breached in the proceedings concerning the invalidation of the election results.
As to the compensation amount proposed, the Court notes the following. The substance of the present complaint is in many respects similar to a complaint raised in a previous case where the Court found a violation of Article 3 of Protocol No. 1 and awarded the applicant 50,000 euros (EUR) in respect of pecuniary damage and EUR 7,500 in respect of non-pecuniary damage (see Kerimova v. Azerbaijan, no. 20799/06, 30 September 2010). However, unlike the present application, it was evident from the facts of the Kerimova case that the arbitrary invalidation of the election results in the entire constituency (as opposed to only five electoral precincts in the present case) had deprived the applicant of a clear victory in the election because the alleged irregularities had not been in her favour and it was apparent from the official election results, as they stood both before and after the tampering with the election protocols, that she had received the highest number of votes in the constituency. Accordingly, the Court found that, in that case, the applicant had suffered a degree of pecuniary damage, as she should have become a member of parliament and thus received the corresponding remuneration for her services. However, in the present case the issue of whether the applicant would have been elected had the invalidation proceedings not been arbitrary cannot be established with certainty on the basis of the facts of the case and the evidentiary material available. Accordingly, it would be speculative to assume that the applicant would have won the election. In this respect, the present case is similar to a number of other election-related cases against Azerbaijan where the Court rejected claims in respect of pecuniary damage based on speculation that applicants could have won the election had their rights not been infringed (see Seyidzade v. Azerbaijan, no. 37700/05, § 50, 3 December 2009; Namat Aliyev v. Azerbaijan, no. 18705/06, § 103, 8 April 2010; and Orujov v. Azerbaijan, no. 4508/06, § 67, 26 July 2011). For these reasons, the Court considers the amount of compensation proposed by the Government, namely EUR 7,200, to be within the range of awards made in respect of non-pecuniary damage in comparable cases and, therefore, acceptable.
In these circumstances, having regard to the nature of the admissions contained in the Government’s unilateral declaration, together with the amount of compensation proposed, which the Court considers to be reasonable, the Court considers, pursuant to Article 37 § 1 (c) of the Convention, that it is no longer justified to continue the examination of this part of the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this part of the application. In view of the above, it is appropriate to strike this part of the application out of the list.
II. OTHER COMPLAINTS
A. Article 5 of the Convention
The applicant complained under Article 5 of the Convention that the proceedings concerning the refusal to grant him immunity from arrest and the proceedings concerning the refusal to substitute the preventive measure of remand in custody with release on bail had been unlawful, unfair and politically motivated.
The Court observes that, in essence, both the impugned sets of proceedings were directed at lifting, in one form or another, the preventive measure of remand in custody that had been imposed originally by the detention order of 10 October 2000. Accordingly, in so far as the present complaint may be construed as challenging, either directly or indirectly, the lawfulness of the original detention order of 10 October 2000, it is essentially the same as the complaint raised in the applicant’s previous application (see Guliyev (dec.), cited above). The Court reiterates in this regard that, in proclaiming the “right to liberty”, Article 5 § 1 is contemplating individual liberty in its classic sense, that is to say the physical liberty of the person (see, among other authorities, Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22; Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Gusinskiy v. Russia, no. 70276/01, § 52, ECHR 2004 IV). Since the applicant has not been dispossessed of his physical liberty, he cannot claim to be the victim of a breach of Article 5 in that respect.
To the extent that it may be argued that the detention order of 10 October 2000 is still in force and as such constitutes a basis for the applicant’s arrest any time he comes under the control of the Azerbaijani law-enforcement authorities in the future, the complaint remains speculative and premature under Article 5, as the applicant’s situation has remained essentially the same as that examined in the Guliyev decision (cited above).
Lastly, in so far as the applicant complained of the procedural fairness of the proceedings instituted to challenge the detention order of 10 October 2000, the Court reiterates its finding in the Guliyev decision (cited above) in connection with a similar complaint, where it held that the complaint did not give rise to any issues under Article 5 § 4 of the Convention because that provision guaranteed the basic requirements of fairness of judicial proceedings only to persons actually “deprived of [their] liberty by arrest or detention”. As noted above, the applicant has not been deprived of his physical liberty by the authorities. Accordingly, no issue arises under Article 5 § 4 of the Convention.
It follows that this part of the application must be rejected in accordance with Article 35 §§ 2 (b), 3 (a) and 4 of the Convention.
B. Article 6 of the Convention
The applicant complained under Article 6 of the Convention about the length of the criminal proceedings, which created uncertainty for his personal situation and prevented him from returning to his homeland for fear of being arrested.
The Court observes that the criminal proceedings against the applicant commenced in April 1998, when the applicant was charged, and are still pending. The proceedings were suspended immediately after he was charged, because the applicant was at large, and they have remained inactive since then. Despite several attempts to have him extradited, his presence could not be secured.
The Court has competence ratione temporis to examine only the period after 15 April 2002, the date of the Convention’s entry into force in respect of Azerbaijan. From that date up to the present day the applicant has remained at large. The Court reiterates that the period when an applicant is unlawfully at large should be excluded from the overall length of the proceedings (see Girolami v. Italy, 19 February 1991, § 13, Series A no. 196-E). Accordingly, no issue arises under the “reasonable time” requirement of Article 6 of the Convention in respect of the entire period falling within the Court’s competence ratione temporis during which the proceedings against the applicant have been pending.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Article 3 of Protocol No. 1 to the Convention and Article 14 of the Convention
The applicant complained under Article 3 of Protocol No. 1 to the Convention and Article 14 of the Convention that the authorities’ refusal to grant him parliamentary immunity had been unlawful and politically motivated. He argued that such refusal, coupled with the lengthy criminal proceedings against him, had prevented him from returning to Azerbaijan and conducting his electoral campaign under the same conditions as other candidates.
The Government submitted that the part of the complaint concerning the allegedly politically motivated decisions of the domestic authorities and the discrimination vis-à-vis other candidates was inadmissible for non exhaustion of domestic remedies. The Government further submitted that the decision not to grant immunity to the applicant had been lawful and that the applicant’s inability to conduct his election campaign personally must be attributed to his own conduct and the existence of criminal charges against him in connection with events unrelated to the elections and that had taken place long before them.
The applicant contested the Government’s submissions.
The Court considers it unnecessary to examine the Government’s objections as to non-exhaustion of domestic remedies as the complaint is, in any event, inadmissible for the following reasons.
The Court notes at the outset that the applicant’s claims that the criminal charges against him were fabricated and politically motivated have remained largely unsupported by relevant arguments or evidence. Although the applicant was granted refugee status in the US, he has failed to inform the Court, with any reasonable degree of detail, as to the US authorities’ grounds for granting him political asylum. In any event, from the standpoint of the Convention, the question whether the criminal proceedings against the applicant were fair has been raised prematurely, as there has been no trial and the proceedings are still pending (see Guliyev (dec.), cited above). While the proceedings are still pending it would be speculative on the Court’s part to attempt to examine claims concerning any alleged political motives behind the authorities’ actions (ibid.). In such circumstances, these claims will have no bearing on the following examination by the Court of the issues raised in the present complaint.
As to the refusal to grant the applicant immunity under Article 70.4 of the Electoral Code, the Court notes that this provision clearly provided that candidates enjoyed immunity from criminal prosecution and arrest only for actions committed after their registration as a candidate. In the present case, the applicant was prosecuted for acts committed in the 1990s, long before his registration as a candidate. The detention order of 10 October 2000 was issued in connection with criminal charges relating to those acts. Accordingly, the Court notes that immunity under Article 70.4 of the Electoral Code did not apply to the applicant and therefore the authorities’ refusal to grant immunity was fully compliant with the domestic law.
The Court further considers that Article 70.4 of the Electoral Code, in itself, is not incompatible with Article 3 of Protocol No. 1 to the Convention. Whether the requirements of Article 70.4 of the Electoral Code or the manner of their application can lead to arbitrary or disproportionate restrictions on electoral rights is a matter to be assessed on a case-by-case basis, taking into consideration the specific circumstances of each case.
In the present case, the applicant claims to have been unable to return to Azerbaijan and conduct his election campaign personally, under the same conditions as other candidates, because he faced a risk of being arrested. The Court notes, however, that the criminal proceedings in respect of the applicant had been instituted long before the elections of 2005 and were unrelated to the elections. As noted above, the detention order in respect of the applicant had been issued several years prior to the elections of 2005, in connection with alleged criminal offences committed in the 1990s. In such circumstances, it cannot be argued that the applicant was facing “the risk of being arrested” specifically as a result of an alleged attempt to prevent his effective participation in the elections of 2005. The applicant had been evading prosecution for many years; that is, since the time of institution of the criminal proceedings and up to the time of his registration as a candidate for the elections of 2005. Accordingly, it cannot escape the Court’s attention that the applicant’s alleged “inability to conduct his electoral campaign personally” was, to a large extent, attributable to his own conduct during the years preceding the elections. In such circumstances, the Court cannot accept the essence of the present complaint – that the mere fact that the applicant stood for election should have somehow served as a ground to legitimatise his conduct as a fugitive.
Taking into consideration the above-mentioned specific circumstances of this particular case, the Court considers that the applicant’s alleged inability to carry out his electoral campaign under the same practical conditions as other candidates did not amount to an unlawful, arbitrary or disproportionate interference with his electoral rights. The Court further finds that no issue arises under Article 14 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 3 of Protocol No. 1 to the Convention concerning the allegedly arbitrary invalidation of the election results in five of the polling stations in the applicant’s electoral constituency (complaint no. 4), and the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it relates to the above complaint;
Declares the remainder of the application inadmissible.
Søren Nielsen Nina
Vajić
Registrar President