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FIRST
SECTION
CASE OF HAJILI v. AZERBAIJAN
(Application
no. 6984/06)
JUDGMENT
STRASBOURG
10
January 2012
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 Hajili v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6984/06)
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 Arif Mustafa oglu Hajili (Arif
Mustafa oğlu Hacılı – “the
applicant”), on 1 February 2006.
- The
applicant was represented by Mr I. Aliyev, a lawyer practising in
Azerbaijan. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr
Ç. Asgarov.
3. The
applicant alleged, in particular, that the invalidation of the
results of the parliamentary elections in his electoral constituency
had infringed his electoral rights under Article 3 of Protocol No. 1
to the Convention.
- On
21 October 2008 the President of
the First Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Baku.
He stood for the elections to the National Assembly (Milli Majlis) of
6 November 2005 as a candidate of the opposition bloc Azadliq.
- The
applicant was registered as a candidate by the Constituency Electoral
Commission (“the ConEC”) for the single-mandate Zaqatala
Election Constituency no. 110.
- There
were a total of forty-one polling stations in the constituency. At
the end of election day, the applicant obtained copies of official
records of election results (səsvermənin nəticələrinə
dair protokol) drawn up by all forty-one Polling Station
Electoral Commissions (“PECs”). According to the copies
of the PEC records in the applicant’s possession, he received
the majority of votes in the constituency.
- On
7 November 2005 the applicant lodged a complaint with the Central
Electoral Commission (“the CEC”), claiming that, after
the submission of all the PEC records of results to the ConEC, the
PEC records for Polling Stations nos. 23, 24 and 25 had been
falsified in favour of one of his opponents.
- On
14 November 2005 the CEC acknowledged receipt of the applicant’s
complaint and also notified him that, on 12 November 2005, it had
issued a decision to invalidate the election results for the entire
Zaqatala Election Constituency no. 110. The decision, in its
entirety, stated as follows:
“Pursuant to Articles 19.4, 19.14, 25.2.22, 28.4,
100.12 and 170.2.2 of the Electoral Code and sections 3.5 and 3.6 of
the Law of 27 May 2003 on Approval and Entry into Force of the
Electoral Code, the Central Electoral Commission decides:
1. To invalidate the election results in
Polling Stations nos. 1, 2, 6, 8, 10, 15, 17, 19, 20, 22, 24, 25, 26,
31, 33, 34, 36, 37 and 40 of Zaqatala Electoral Constituency no. 110
due to impermissible alterations [“yolverilməz
düzəlişlər”] made to the PEC records of
election results [“protokollar”] of those polling
stations as well as infringements of the law [“qanun
pozuntuları”] which made it impossible to determine
the will of the voters.
2. To invalidate the election results in
Zaqatala Electoral Constituency no. 110 due to the fact that the
number of polling stations in which the election results have been
invalidated constitutes more than two-fifths of the total number of
polling stations in the constituency and that the number of voters
registered in those polling stations constitutes more than
one-quarter of the total number of voters in the constituency.”
- On
14 November 2005 the applicant lodged an appeal against that decision
with the Court of Appeal, arguing that the findings in the CEC
decision were wrong. He argued that, while the CEC decision stated
that “impermissible alterations” had been made to the
results records of nineteen PECs, in reality such alterations had
been made to the records of only three PECs (in Polling Stations nos.
23, 24 and 25). As for the PEC records for other polling stations,
the photocopies of the same PEC records which were in his possession
did not contain any such alterations or changes. According to those
PEC records (and excluding the PEC records for Polling Stations nos.
23, 24 and 25), he had obtained the highest number of votes in the
constituency. The applicant requested the court to quash the CEC
decision of 12 November 2005 and to declare him the winner of the
election in the constituency.
- During
the hearing held on 14 November 2005, the judges of the Court of
Appeal did not independently examine the originals of the PEC and the
ConEC records of results or hear witnesses called by the applicant.
The Court of Appeal upheld the CEC decision by reiterating the
findings made in that decision and concluding that the invalidation
of the election results based on those findings had been lawful.
- The
applicant lodged a cassation appeal. In addition to the arguments
advanced in his appeal before the Court of Appeal, he also
complained, inter alia, that the Court of Appeal had refused
to independently examine the primary evidence and had simply taken
the CEC’s findings as fact. He also complained that the CEC had
failed to consider the possibility of ordering a recount of the votes
as required by Article 108.4 of the Electoral Code and to summon him
as an affected party and hear his explanation as required by Article
112.8 of the Electoral Code.
- On
23 November 2005 the Supreme Court rejected the applicant’s
appeal and upheld the Court of Appeal’s judgment as lawful.
- On
1 December 2005 the Constitutional Court ordered repeat elections to
be held on 13 May 2006 for all electoral constituencies in which the
results had been invalidated, including the applicant’s
constituency.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL REPORTS
A. Electoral Code
- After
the votes in a polling station have been counted at the end of
election day, the PEC draws up an official record of election results
(in three original copies) documenting the results of the vote in the
polling station (Articles 106.1-106.6). One copy of the PEC
record, together with other relevant documents, is then submitted to
the relevant ConEC within twenty four hours (Article
106.7). The ConEC verifies whether the PEC record complies with the
law and whether it contains any inconsistencies (Article 107.1).
After submission of all PEC records, the ConEC tabulates, within two
days of election day, the results from the different polling stations
and draws up a record reflecting the aggregate results of the vote in
the constituency (Article 107.2). One copy of the ConEC record of
results, together with other relevant documents, is then submitted to
the CEC within two days of election day (Article 107.4). The CEC
checks whether the ConEC records comply with the law and whether they
contain any inconsistencies (Article 108.1) and draws up its own
final record reflecting the results of voting in all constituencies
(Article 108.2).
- If
within four days of election day the CEC discovers mistakes,
impermissible alterations or inconsistencies in the records of
results (including the accompanying documents) submitted by ConECs,
the CEC may order a recount of the votes in the relevant electoral
constituency (Article 108.4).
- Upon
review of a request to declare invalid the election of a registered
candidate, an electoral commission has a right to hear submissions
from citizens and officials and to obtain necessary documents and
materials (Article 112.8).
- In
the event of the discovery of irregularities aimed at assisting
candidates who were not ultimately elected, such irregularities
cannot be a basis for the invalidation of the election results
(Article 114.5).
- The
ConEC or CEC may invalidate the election results for an entire
single-mandate constituency if election results in two-fifths of
polling stations, representing more than one-quarter of the
constituency electorate, have been invalidated (Article 170.2.2).
- According
to former Article 106.3.6 of the Electoral Code in force at the
material time, during the initial vote-counting at a polling station
at the end of election day, if a voting ballot which had not been
properly placed in the corresponding envelope was found in the ballot
box, the vote on that ballot was considered to be invalid. Article
106.3.6 was subsequently repealed on 2 June 2008.
B. The Organisation for Security and Cooperation in
Europe, Office for Democratic Institutions and Human Rights
(OSCE/ODIHR) Election Observation Mission Final Report on the
Parliamentary Elections of 6 November 2005 (Warsaw, 1 February 2006)
- The
relevant excerpts from the report read as follows:
“Although constituency aggregate results were made
available within the legal deadline, detailed results by polling
station were only released on 10 November, four days after the
election, despite the computer networking of all ConECs with the CEC.
This made it difficult for candidates and observers to check that
results had been reported accurately. Protocols from two
constituencies, 9 and 42, were never posted publicly. ...
The CEC invalidated the results of four constituencies
[including Zaqatala Election Constituency no. 110] under Article
170.2 of the Election Code, which states that if a ConEC or the CEC
cancels more than 2/5 of PECs representing more than 1/4 of the total
electorate in a constituency, then the entire constituency result is
considered invalid. ...
At least ... two ConEC chairpersons [ConECs 9 and 42]
were dismissed after election day for involvement in electoral
malfeasance. The two ConEC chairpersons were arrested and charged
with forging election documents. ... The CEC forwarded materials on
possible criminal violations to the Prosecutor General’s Office
regarding 29 PECs. ...
The process of invalidation of aggregated results in
four constituencies by the CEC did not have sufficient legal grounds
or an evidentiary basis, nor was the process transparent. The CEC
decisions on the invalidation of the election results in the four
constituencies concluded that there were “unacceptable
modifications performed on the protocols and law infringements which
made it impossible to determine the will of the voters” but did
not provide any factual basis to support this conclusion. ...
Furthermore, when it invalidated results, the CEC did
not make the required initial factual inquiry [as required by Article
170.2 of the Election Code], and ignored Article 108.4 of the
Election Code, which authorizes the CEC to order a recount of votes
in a constituency if the protocols and documents submitted by the
ConEC reveal “mistakes, inadmissible corrections and
inconsistencies.” Protocols of ConECs and PECs were not
examined or reviewed at CEC sessions. Invalidation of results in a
polling station was premised solely on the conclusion of an
individual CEC member as to whether a protocol should be invalidated.
The judgment of a single CEC member that there were deficiencies in
the protocol was accepted as established fact without any explanation
of the alleged defect or identification of the number of votes
involved. Accordingly, there was no factual basis presented publicly
for invalidating results in any of the four constituencies, which is
particularly troubling since the CEC registered few complaints that
alleged violations in these constituencies. ...
The adjudication of post-election disputes in the courts
largely disregarded the legal framework, and fell short of
internationally accepted norms. ... In most cases, complaints and
appeals were either dismissed without consideration of the merits or
rejected as groundless by both the Court of Appeal and the Supreme
Court.
Opposition candidates appealed the CEC’s
invalidation of results in constituencies 9, 42 and 110. The Court of
Appeal upheld the three CEC decisions without any investigation or
review of the primary documents and evidence, such as the PEC
protocols. In constituency 9, the appellant petitioned the Court of
Appeal to examine the protocols, which had been forwarded to the
Prosecutor General’s office by the CEC. This petition was
denied. In constituency 42, the appellant made an identical request
and the court again denied the petition, ruling that it was
impossible to obtain the protocols from the Prosecutor General within
the legal deadline. The CEC was not able to explain or give any
information as to any specific defect in an invalidated protocol or
offer any explanation as to what change to a protocol was sufficient
for invalidation. ...
Proceedings in the Supreme Court did not correct the
shortcomings noted above. The Supreme Court upheld each CEC
decision.”
THE LAW
I. THE GOVERNMENT’S REQUEST FOR THE APPLICATION TO
BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
- By
letter dated 26 October 2010 the Government informed the Court of
their unilateral declaration with a view to resolving the issues
raised by eight separate applications, including the present
application lodged by Mr Arif Hajili. The declaration read as
follows:
“Having regard to the Court’s judgment in
the case of Namat Aliyev v. Azerbaijan (application no.
18705/06, 8 April 2010) the Government of the Republic of Azerbaijan
wish to express – by way of a unilateral declaration –
its acknowledgement that in the cases of Yagub Mammadov
(application no. 24506/06), Arif Hajili (application no.
6984/06), Mirmahmud Fattalyev (application no. 40318/06),
Fuad Mustafayev (application no. 19552/06), Isa Gambar
(application no. 4741/06), Elchin Rzayev (application no.
22457/06), Eldar Namazov (application no. 22564/06), Ilham
Huseyn (application no. 36105/06) v. Azerbaijan the rights of the
applicants under Article 3 of Protocol No. 1 were violated.
The Government are prepared to pay to each applicant
total sum of EUR 9,100 (nine thousand one hundred euros) in
compensation for non-pecuniary damage and costs and expenses. These
sums shall be free of any tax that may be applicable and shall be
payable within three months from the date of the notification of the
striking-out judgment of the Court pursuant to Article 37 of the
European Convention on Human Rights. From the expiry of the
above-mentioned period, 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.
The Government consider that this amount will be an
adequate redress and sufficient compensation for the impugned
violations and thus will constitute the final settlement of the
present cases.
The Government note that the Election Code of the
Republic of Azerbaijan has been amended – following the
recommendations of the Venice Commission of the Council of Europe –
in order to improve the procedure of examination of the complaints by
the electoral commissions. The Government will also undertake to
issue appropriate instructions and adopt all necessary measures in
view to ensure that all complaints concerning election irregularities
are effectively addressed at the domestic level in the future.
Moreover, the ‘Action Plan for Council of Europe support to
parliamentary election in Azerbaijan in November 2010’ was
adopted in cooperation between the Government of Azerbaijan and the
Council of Europe in order to support the election process in the
country. Various measures (political, legislative, training, media
issues, voters’ awareness raising, etc.) were scheduled in this
document. In particular, taking account of the Court’s judgment
in the case of Namat Aliyev v. Azerbaijan and its case-law, as
well as applications lodged with the Court against Azerbaijan with
respect to Article 3 of Protocol No. 1 to the Convention, various
trainings and seminars will be organized for the representatives of
the electoral administration as well as judges in order to improve
the appeals and complaints system stipulated in the domestic
legislation. Separate workshop on criminal aspects of the complaints
will be held for the prosecutors. ...
The Government consider that the supervision by the
Committee of Ministers of the execution of Court judgments concerning
the Republic of Azerbaijan in these and similar cases is an
appropriate mechanism for ensuring that improvements will be made in
this context. To this end, necessary cooperation in this process will
continue to take place.
In the light of the above, the Government would suggest
that the circumstances of the present cases 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 in fine, which would require the further
examination of the cases by virtue of that provision. Accordingly,
the Government invite the Court to strike the applications out of its
list of cases.”
- In
a group letter of 9 November 2010, the applicants in the above
applications, including the applicant in the present case, argued
that the terms of the unilateral declaration were unsatisfactory.
- The
Court has accepted the terms of the Government’s unilateral
declaration in respect of seven out of the eight cases mentioned in
the above-cited unilateral declaration and decided to strike those
cases out of the list in respect of the complaints concerning the
breaches of the respective applicants’ electoral rights (see
Gambar and Others (dec.), nos. 4741/06, 19552/06,
22457/06, 22654/06, 24506/06, 36105/06 and 40318/06, 9 December
2010).
- However,
the Court cannot reach the same conclusion in respect of the present
case for the following reasons.
- The
Court reiterates that in certain circumstances, it may strike out an
application under Article 37 § 1 (c) on the basis of a
unilateral declaration by a respondent Government even if the
applicant wishes the examination of the case to be continued. To this
end, the Court will examine carefully the declaration 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 respect (see Tahsin Acar v. Turkey
(preliminary issue) [GC], no. 26307/95, §§
74-77, ECHR 2003-VI). The list of such relevant factors is not
intended to be exhaustive and it includes such factors as the
question of whether in their unilateral declaration the respondent
Government have made any admissions in relation to the alleged
violations of the Convention and, if so, the scope of such admissions
and the manner in which they intend to provide redress to the
applicant (ibid., § 76).
- Turning
to the present case, the Court notes that the Government acknowledged
the violation of the rights under Article 3 of Protocol No. 1 of the
eight applicants (including the applicant in the present case) owing
to the alleged similarity of all these cases to the Namat Aliyev
judgment (see Namat Aliyev v. Azerbaijan, no.
18705/06, 8 April 2010). Furthermore, in respect of all those cases,
the Government made an undertaking to take the same general measures
as those specifically planned in the framework of the execution of
the Namat Aliyev judgment. Accordingly, it appears that the
inclusion of the specific references to the Namat Aliyev case
was intended to limit the scope of the Government’s
acknowledgment to the type of violation of Article 3 of Protocol No.
1 found in that particular case.
- However,
the Court notes that, unlike the other seven cases which indeed
raised issues similar to those in the Namat Aliyev case, the
present application concerns a different kind of interference with
the rights guaranteed by Article 3 of Protocol No. 1 to the
Convention. Specifically, while the applicants in the Namat Aliyev
case and the other seven cases referred to in the unilateral
declaration complained about the ineffectiveness of the domestic
electoral appeals’ system in connection with their complaints
concerning election irregularities that had occurred before and
during election day, the applicant in the present case complained
about the allegedly arbitrary annulment of the results of the
election in his electoral constituency.
- Accordingly,
having regard to the content and scope of the Government’s
unilateral declaration and the context in which it was made, the
Court considers that it does not contain a full admission of the
specific alleged violation complained of in the present application.
In such circumstances, the Court finds that the unilateral
declaration failed to establish a sufficient basis for finding that
respect for human rights as defined in the Convention and its
Protocols does not require the Court to continue its examination of
the case.
- Therefore,
the Court refuses the Government’s request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the application.
II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO
THE CONVENTION
- Relying
on Article 3 of Protocol No. 1 to the Convention and Article 13
of the Convention, the applicant complained that the invalidation of
election results in his electoral constituency had been arbitrary and
unlawful and had infringed his electoral rights as the rightful
winner of the election. He argued that the process of invalidation
had lacked transparency and sufficient safeguards against
arbitrariness, and that the decisions of the electoral commissions
and domestic courts lacked any factual basis and were contrary to a
number of requirements of the domestic electoral law.
- The
Court considers that this complaint falls to be examined only under
Article 3 of Protocol No. 1 to the Convention and that no separate
examination is necessary under Article 13. Article 3 of Protocol No.
1 reads as follows:
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
A. Admissibility
- The
Government argued that the applicant had lost his “victim”
status because the authorities had acknowledged the breaches of
electoral law that had infringed the electoral rights of voters and
candidates (including the applicant) and afforded redress for those
breaches, by means of invalidating the election results and ordering
repeat elections in the constituency.
- The
applicant contested this objection.
- The
Court considers that the Government’s objection is misplaced as
it appears to be based on an assumption that the applicant’s
Convention rights had been breached by the fact of the alleged
irregularities that included “falsification of electoral
documents” at the PEC and ConEC level. However, the Court notes
that in the present case, the applicant complained not about the
alleged irregularities at the lower levels or the alleged
perpetrators of those irregularities, but about the allegedly
arbitrary annulment by the CEC of the election results in his
constituency. Accordingly, the Court notes that in the present case
the annulment of the election results could not possibly deprive the
applicant of his victim status in respect of the present complaint,
given that this annulment in itself is the matter complained of.
Moreover, the mere fact that the repeat elections were held does not
constitute a redress for any breaches of electoral rights that had
taken place during the original elections. For these reasons,
the Court rejects the Government’s objection.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the CEC’s decision to invalidate the
election results in the applicant’s electoral constituency had
followed a complaint by the applicant himself and had been based on
sound factual findings.
- As
to the applicant’s argument that the CEC had failed to order a
recount, the Government argued that Article 108.4 of the Electoral
Code did not require the CEC to recount the votes in all cases, but
simply vested it with the discretion to decide whether a recount of
votes should be ordered in each particular case. The Government
further argued that a recount of votes had not been possible in the
present case, because in accordance with Article 106.3.6 of the
Electoral Code in force at the material time (this provision was
subsequently repealed in 2008), ballots which were not in envelopes
were considered invalid. As all the ballots submitted to the CEC had
already been pulled out of their envelopes during the original count
in the relevant polling stations and had not been put back into them,
the recount of these ballots was impossible.
- The
Government argued that the established incidents of tampering with
official records of election results had made it impossible for the
CEC to determine the true will of the voters on the basis of those
records. Such interference with the procedure of the vote-count
documentation interfered with the free expression of the opinion of
the people and, therefore, the CEC had correctly invalidated the
election results in the applicant’s constituency, as it was
guided by the legitimate aim of ensuring that only the candidates
elected in accordance with the will expressed by voters represented
those voters in parliament.
- The
applicant submitted that he had won the election convincingly by a
considerable margin of votes. The applicant claimed that, according
to the relevant PEC results records which he had been able to obtain,
he had received the highest amount of votes in the constituency.
Moreover, he noted that the “provisional” election
results published by the media immediately after the elections had
indicated him as the winner in his constituency.
- The
applicant argued that the CEC decision had lacked any relevant
reasons and that he, as a candidate and affected party, had been
deprived of the opportunity to exercise his basic procedural rights
during the CEC proceedings. The examination by the domestic courts of
his appeals against the CEC decision had been ineffective.
- The
applicant further noted that all the alleged impermissible changes
made to the official records of the election results had been made in
favour of his opponents, and not in his favour. Despite this, the CEC
had failed to comply with Article 114.5 of the Electoral Code, which
did not allow invalidation of election results if it was established
that any irregularities discovered during the election process had
been made to assist the candidates who had not ultimately been
elected, and not the winning candidate. In any event, the majority of
the alleged unlawful alterations were of a “technical nature”
which did not affect the figures on the total number of votes cast,
and therefore could not impede the determination of the true will of
the voters.
- As
for the Government’s argument concerning the alleged
impossibility of a recount of the votes, the applicant noted that the
Government’s reference to former Article 106.3.6 of the
Electoral Code was wrong, because that provision concerned only the
original count of the votes in polling stations at the end of
election day, when the envelopes containing the ballots were first
taken out of the ballot boxes, and did not concern any subsequent
recount of votes in the presence of the CEC members. In any event,
the applicant considered that on the facts of the cases there was
no need for a recount, for the simple reason that his victory in
the election could be established beyond any doubt from the
documentary material available.
- The
applicant submitted that there were no legitimate grounds for an
outright invalidation of the election results for the entire
electoral constituency. Such a decision in the present case meant in
essence that the domestic electoral system allowed one or a few
random individuals to frustrate the opinion of tens of thousands of
voters simply by making minor alterations to official records of
election results. This in turn gave the current Government the
opportunity to prevent opposition candidates from becoming members of
parliament by simply having an electoral official tamper with a
results record in order to render the results of the election null
and void, and subsequently escape with a very lenient penalty for
doing this.
2. The Court’s assessment
- Article
3 of Protocol No. 1 appears at first sight to differ from the other
rights guaranteed in the Convention and Protocols, as it is phrased
in terms of the obligation of the High Contracting Party to hold
elections which ensure the free expression of the opinion of the
people rather than in terms of a particular right or freedom.
However, the Court has established that it guarantees individual
rights, including the right to vote and to stand for election (see
Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51,
Series A no. 113). The Court has consistently highlighted the
importance of the democratic principles underlying the interpretation
and application of the Convention and has emphasised that the rights
guaranteed under Article 3 of Protocol No. 1 are crucial to
establishing and maintaining the foundations of an effective and
meaningful democracy governed by the rule of law (ibid., § 47;
see also Hirst v. the United Kingdom (no. 2) [GC], no.
74025/01, § 58, ECHR 2005-IX).
- The
rights bestowed by Article 3 of Protocol No. 1 are not absolute.
There is room for “implied limitations” and Contracting
States have a wide margin of appreciation in the sphere of elections
(see Mathieu-Mohin and Clerfayt, cited above, § 52;
Matthews v. the United Kingdom [GC], no. 24833/94, §
63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95,
§ 201, ECHR 2000-IV). It is, however, for the Court to
determine in the last resort whether the requirements of Article 3 of
Protocol No. 1 have been complied with. In particular, it has to
satisfy itself that the conditions do not curtail the rights in
question to such an extent as to impair their very essence and
deprive them of their effectiveness; that they are imposed in pursuit
of a legitimate aim; and that the means employed are not
disproportionate (see Mathieu-Mohin and Clerfayt, cited above,
§ 52, and Gitonas and Others v. Greece, 1 July 1997,
§ 39, Reports of Judgments and Decisions 1997-IV). Such
conditions must not thwart the free expression of the people in the
choice of the legislature – in other words, they must reflect,
or not run counter to, the concern to maintain the integrity and
effectiveness of an electoral procedure aimed at identifying the will
of the people through universal suffrage (see Hirst (no. 2),
cited above, § 62).
- Furthermore,
the object and purpose of the Convention, which is an instrument for
the protection of human rights, requires its provisions to be
interpreted and applied in such a way as to make their stipulations
not theoretical or illusory but practical and effective (see, among
many other authorities, United Communist Party of Turkey and
Others v. Turkey, 30 January 1998, § 33, Reports
1998-I; Chassagnou and Others v. France [GC], nos.
25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III; and
Lykourezos v. Greece, no. 33554/03, § 56, ECHR
2006-VIII). The right to stand as a candidate in an election, which
is guaranteed by Article 3 of Protocol No. 1 and is inherent in
the concept of a truly democratic regime, would only be illusory if
one could be arbitrarily deprived of it at any moment. Consequently,
while it is true that States have a wide margin of appreciation when
establishing eligibility conditions in the abstract, the principle
that rights must be effective requires that the eligibility procedure
contain sufficient safeguards to prevent arbitrary decisions
(see Podkolzina v. Latvia, no. 46726/99, § 35,
ECHR 2002-II). Although originally stated in connection with the
conditions on eligibility to stand for election, the principle
requiring prevention of arbitrariness is equally relevant in other
situations where the effectiveness of individual electoral rights is
at stake (see Namat Aliyev, cited above, § 72), including
the manner of review of the outcome of elections and invalidation of
election results (see Kovach v. Ukraine, no. 39424/02, § 55
et seq., ECHR 2008-...).
- The
Court has emphasised that it is important for the authorities in
charge of electoral administration to function in a transparent
manner and to maintain impartiality and independence from political
manipulation (see The Georgian Labour Party v. Georgia,
no. 9103/04, § 101, 8 July 2008), that the
proceedings conducted by them be accompanied by minimum safeguards
against arbitrariness and that their decisions are sufficiently
reasoned (see, mutatis mutandis, Namat Aliyev, cited
above, §§ 81-90, and Kovach, cited above, §§
59-60).
- The
Court notes that it has previously examined a complaint based on very
similar facts, in the Kerimova judgment
(see Kerimova v. Azerbaijan, no. 20799/06,
30 September 2010). However, it observes that, unlike the
Kerimova judgment, where it was apparent from the established
facts that the applicant would have won the election had the election
results not been invalidated arbitrarily (ibid., §§ 9 and
47), in the present case it is not possible to establish with
certainty that the applicant would have won the election in his
electoral constituency. Specifically, while the applicant claimed
that he had received the highest number of votes based on the copies
of PEC results records in his possession, no similar aggregated vote
count showing him as the winner has ever been officially produced by
the relevant ConECs or CEC (unlike in the Kerimova case). In
this respect, the Court notes that, unless it is rendered unavoidable
by the circumstances of the case, it is not the Court’s task to
substitute itself for domestic electoral authorities or to take on
the function of a first-instance tribunal of fact by attempting to
determine the exact vote counts on the basis of records of election
results issued by electoral commissions of the lowest level or to
determine who should have won the elections in the applicant’s
constituency (see, mutatis mutandis, Namat Aliyev,
cited above, § 77). Nevertheless, it is sufficiently clear from
the facts of the case that the applicant was one of the frontrunners
among other candidates in his electoral constituency and that the
authorities’ decision to annul the election results affected
the applicant’s chances of being elected to the National
Assembly. In this connection, the Court also reiterates that
Article 3 of Protocol No. 1 guarantees not a right to
win the election per se, but a right to stand for election in
fair and democratic conditions (ibid., § 75).
- Moreover,
it is true that in the present case, prior to the CEC decision on the
annulment of the election, the applicant had complained to the CEC
about alleged irregularities perpetrated against him in three polling
stations of the constituency. It could therefore be argued that the
CEC decision followed a relevant request by the applicant. However,
the CEC decision went manifestly beyond what had been requested of it
by the applicant and invalidated the election results in a greater
number of polling stations of the constituency, resulting in an
invalidation of the election results in the constituency as a whole.
- Having
regard to the above considerations, the Court considers that the CEC
decision to annul the elections constituted an interference with the
applicant’s effective exercise of his right to stand for
election. It remains to be determined whether this interference was
compatible with the requirements of Article 3 of Protocol No. 1 to
the Convention.
- The
Government contended that the impugned decision on the invalidation
of election results had been aimed at protecting the free expression
of the voters’ opinion from illegal interference and ensuring
that only the rightfully elected candidates represented the voters in
parliament. However, the Court has doubts as to whether a practice of
discounting all votes cast in an entire electoral constituency owing
merely to the fact that irregularities have taken place in some
polling stations, without an attempt to establish in a diligent
manner the extent of the irregularities and their impact on the
outcome of the overall election results in the constituency, can
necessarily be seen as pursuing a legitimate aim for the purposes of
Article 3 of Protocol No. 1 (compare, mutatis mutandis,
Kovach, cited above, § 52, and Kerimova, cited
above, § 46). However, the Court is not required to take a
final view on this issue in the light of its findings below.
- Having
regard to the decisions of the CEC and domestic courts in the present
case, the Court considers that they were not in compliance with the
requirements of Article 3 of Protocol No. 1, for essentially the same
reasons as those in the Kerimova judgment. In particular, the
Court notes the following.
- As
to the CEC decision of 12 November 2005 invalidating the election
results in the applicant’s constituency (see paragraph 9
above), the Court notes that it contained no specific description of
the alleged “impermissible alterations” made to the PEC
results records or other “infringements of law”, no
elaboration as to the nature of these “alterations” and
“infringements”, and no reasons explaining as to why the
alleged breaches obscured the outcome of the vote in the relevant
polling stations and made it impossible to determine the true opinion
of the voters. In these circumstances the Court cannot but note that
the CEC decision was unsubstantiated.
- Furthermore,
the Court notes that, like in the Kerimova case, the CEC and
the domestic courts failed to follow a number of procedural
safeguards provided by the domestic electoral law, without explaining
the reasons for that omission. Firstly, the CEC failed to consider
the possibility of a recount of votes before invalidating the
election results for the entire constituency. Even accepting the
Government’s argument that under Azerbaijani law an election
recount was optional (at the CEC’s discretion) and not
mandatory, the Court considers that in the present case the CEC could
have considered the possibility of a recount or at least explained
the reasons for passing up this opportunity before deciding on an
invalidation of the election results. Secondly, the Court notes that
the domestic authorities ignored the requirements of Article 114.5 of
the Electoral Code, which prohibited invalidation of election results
at any level on the basis of a finding of irregularities committed
for the benefit of candidates who lost the election. Accordingly, it
appears that according to this provision, prior to considering a
decision to annul the election, the authorities first had to specify
the total vote counts and determine in whose favour the alleged
irregularities had been made. However, this has not been done in the
present case. In the Court’s view, the authorities’
failure to order a recount of votes or to take into account the
requirements of Article 114.5 of the Electoral Code, and the lack of
any explanation for such failure, contributed to the appearance of
arbitrariness of the decision on the annulment of the election
(compare Kerimova, cited above, §§ 49-51).
- Lastly,
the Court notes that, despite the fact that the applicant had
repeatedly raised all of the above points in his appeals to the
domestic courts, the domestic courts failed to adequately address
these issues and reiterated the CEC’s findings. They refused to
examine any primary evidence, which mostly consisted of the illegally
altered originals of the PEC records of election results, and failed
to review the compliance of the CEC decision with the requirements of
the electoral law. As such, the manner of examination of the
applicant’s election-related appeals was ineffective.
- For
the above reasons, Court concludes that the decision on the annulment
of the election results in the applicant’s electoral
constituency was arbitrary, as it lacked any relevant and sufficient
reasons and was in apparent breach of the procedures established by
the domestic electoral law (see paragraph 55 above). This decision
arbitrarily prevented the applicant from exercising effectively his
right to stand for election and as such ran counter to the concern to
maintain the integrity and effectiveness of an electoral procedure
aimed at identifying the will of the people through universal
suffrage.
- There
has accordingly been a violation of Article 3 of Protocol No. 1 to
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- In
conjunction with the above complaint, the applicant complained that
he had been arbitrarily deprived of his seat in the National Assembly
owing to his affiliation with the political opposition. 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.
IV. ALLEGED VIOLATION OF 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 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 his 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 (a) and must be rejected in accordance with
Article 35 § 4.
V. 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 134,938 Azerbaijani manats (AZN) in respect of
pecuniary damage, including damage caused by loss of the earnings he
would have received in the form of a parliamentary member’s
salary if elected to the National Assembly had the results of
elections in his constituency not been invalidated, as well as loss
of the useful effect of the funds spent on his election campaign.
- The
Government contested the applicant’s claims.
- As
to the claim in respect of loss of a parliamentary member’s
salary, the Court reiterates that, as discussed in paragraph 49
above, it cannot be established with sufficient certainty in this
case (unlike in the similar Kerimova case) that the applicant
would necessarily have won the election in his constituency and
become a member of parliament, had the election not been annulled in
an arbitrary manner. It is therefore impossible for the Court to
speculate as to whether the applicant would have received a member of
parliament’s salary.
- As
to the claim in respect of expenses borne during the election
campaign, the Court does not discern any causal link between the
violation found and the pecuniary damage alleged.
- For
the above reasons, the Court rejects the claim in respect of
non pecuniary damage.
2. Non-pecuniary damage
- The
applicant claimed AZN 50,000 in respect of non-pecuniary damage.
- The
Government argued that the amount claimed was excessive and
considered that a 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 3,750 for the costs and
expenses incurred before the Court, including legal fees, translation
costs and postal expenses.
- The
Government contested this claim.
- 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. In the present case, regard being
had to the documents in its possession and the above
criteria, 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
- Rejects the Government’s request to strike
the application out of its list of cases;
- 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
from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into Azerbaijani manats at the
rate applicable at the date of settlement:
(i) EUR
7,500 (seven thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,600 (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 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
