September 2010
4
The applicant stood for the parliamentary elections in 2005.
According to the voting results of ConEC she obtained most of
voices and indicated the applicant as “the elected candidate”.
Moreover, according to the PEC protocols the applicant had more
voices
than
indicated
by ConECn.
Then
Central
Election
Commission (“the CEC”) issued a decision invalidating the election
results in electoral constituency where the applicant stood as
candidate. The applicant lodged an appeal against this decision with
the Court of Appeal, arguing that the findings in the CEC decision
were wrong. The applicant further complained that the CEC had
failed to consider her rights granted under Articles 108.4 and 112.8
4
Kerimova v Azerbaijan,
http://bit.ly/1LoycMR
162
of the Electoral Code (stipulating possibility of ordering a recount of
the votes and to summon her as the candidate; and hear her
explanation).
Lastly, the applicant required. But the Court of Appeal refused to
independently examine the originals of the PEC and ConEC
protocols, and upheld the CEC decision by reiterating the findings
made in that decision. The applicant lodged a cassation appeal. The
Supreme Court rejected the applicant's appeal.
After exhausting the domestic remedies, the Applicant applied to
ECtHR and claimed the violation of her right to elections granted
under Article 3 of the Protocol 1.
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,
that
the
proceedings
conducted
by
them
be
accompanied by minimum safeguards against arbitrariness and that
their decisions are sufficiently reasoned (para 45). Regarding the
Government argument where it contended that the impugned
decision on the invalidation of election results was aimed at
protecting the free expression of the voters' opinion from illegal
interference and ensuring that only the rightfully elected candidates
represented the voters in the Parliament, the Court had doubts as to
whether a practice of discounting all votes cast in an entire electoral
constituency owing merely to the fact that irregularities have taken
place in some polling stations, regardless of the extent of the
irregularities and their impact on the outcome of the overall election
results in the constituency, can necessarily be seen as pursuing a
legitimate aim for the purposes of Article 3. (para 46)
It is sufficiently clear from the material available in the case file that,
according to the copies of PEC protocols obtained by the applicant
from each of the polling stations at the end of election day, the
applicant received a total of 5,566 votes against H.'s [other
candidate`s] 3,992 votes. According to the ConEC protocol issued
on the basis of those PEC protocols, after some of those protocols
had been tampered with, the applicant received 5,350 votes against
H.'s H.'s [other candidate`s] 4,091 votes. Thus, it is obvious that the
election results, as they stood both before and after the irregularities
163
involving illegal alterations to protocols, showed that the applicant
was the clear winner of the elections. Moreover, neither the CEC nor
the domestic courts hearing appeals against its decision, nor the
Sumgayit City Court, dealing with the criminal case concerning the
irregularities in question, ever found that any of the illegal
alterations had been made to assist the applicant's cause. In such
circumstances, the Court finds it hard to understand the electoral
authorities' and the Government's position that these irregularities
had somehow made it “impossible to determine the will of the
voters” in the entire constituency. In regard with the CEC decision
invalidating the election results, the Court notes that as it contained
no specific description, no elaboration as to the nature of the alleged
infringements, was totally unsubstantiated. (paras 47-48)
The Court noted that, it agrees with the applicant that such a recount
was in any event redundant because it was possible to establish who
the winning candidate even despite
the irregularities
was.
Nevertheless, the Court finds alarming the CEC's failure to even
consider the possibility of a recount before invalidating the election
results. The Court considers that, in cases where illegal tampering
with
vote
counting
or
election
documents
may affect
the
determination of the outcome of the elections, a fair procedure for
recounting votes where such a recount is possible is an important
safeguard of the fairness and success of the entire election process.
Even under Azerbaijani legislation an election recount was optional
and not mandatory, in the present case the CEC could have
considered the possibility of a recount before deciding on an outright
invalidation of the election results. (para 49)
The Court finds out that, it was improperly applied Article 106.3.6
of the Electoral Code (concerning recount of votes), Article 170.2.2
(invalidating the election results in the entire constituency based on
the fact that the elections in two-fifths of the total number of polling
stations representing more than one-quarter of the constituency
electorate had been annulled), and ignored the requirements of
Article 114.5 of the Electoral Code (prohibiting 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). In this
connection, the Court notes that the situation envisaged in Article
114.5 of the Electoral Code is the direct opposite of a situation
where irregularities are found to have been allegedly made to the
164
benefit of the “winning” candidate (contrast Namat Aliyev). Neither
the CEC, nor the domestic courts dealing with the appeals against its
decision, made an attempt to determine in whose favour the alleged
irregularities had been made. However, they applied Article 114.5 of
EC. In any event, the subsequent proceedings Sumgayit City Court
established that all the illegal alterations had been made exclusively
for the benefit of the applicant's opponents. (paras 50-51)
The Court notes that, the courts failed to adequately address these
issues all of which rose by applicant, they refused to examine any
primary evidences. As such, the manner of examination of the
applicant's appeals was ineffective.
The Court emphasized that, the authorities' inadequate approach to
this matter brought about a situation where the whole election
process in the entire electoral constituency was essentially single-
handedly sabotaged by two low-ranking electoral officials, who had
abused their position to make some changes to a number of election
protocols that were in their possession. By arbitrarily invalidating
the election results because of these officials' actions, the domestic
authorities essentially aided and abetted them in thwarting the
election. Such lack of concern for integrity of the electoral process
from within the electoral administration cannot be considered
compatible with the spirit of Article 3. (para 53)
Lastly, the Court concluded that, the annulment of the elections in
the applicant's constituency lacked any relevant reasons and was in
apparent breach of the procedure established by the domestic
electoral law (EC, article 114.5).
4. [Nadir] Orujov v. Azerbaijan, Application No. 4508/06, 26 July
2011
5
The applicant applied to ConEC and registered as an independent
candidate for the forthcoming elections to the Parliament in 2005. In
the course of election period, the district Police Department
informed the ConEC that the applicant was privately funding certain
urban improvement works in some public areas of his constituency,
in breach of the requirements of the electoral law. To this effect, the
5
Orujov v Azerbaijan,
http://bit.ly/1MJG1Qp
164
records drew up by police was introduced to the ConEC. The ConEC
submitted the cancellation request to the Court of Appeal. According
to the applicant, he was not informed about the ConEC’s request in a
timely manner. The Court of Appeal referring to the testimonies of
the witnesses, whose name was indicated in the records, came to
conclusion of the breach of the electoral law by the Applicant,
therefore decided to cancel the applicant’s registration as a
candidate. The applicant lodged a cassation appeal with the Supreme
Court and enclosed the witness affidavits creating a different
situation, arguing that the evidence used against him had been
fabricated, that the Court of Appeal had made manifest errors in
examining the evidence. The Supreme Court dismissed the
applicant’s appeal and upheld the Court of Appeal’s judgment.
After exhausting the domestic remedies, the Applicant applied to
EctHR and claimed the violation of his right to elections granted
under Article 3 of the Protocol 1.
The Court noted that in the present case the applicant was
disqualified as a candidate in accordance with Articles 88.4 and 113
of the Electoral Code, which provide for the possibility of
disqualification of candidates who resort to unfair and illegal means
of gaining voter support. The Court accepts the Government’s
argument that the conditions set out in the above-mentioned
provisions of the Electoral Code pursue the legitimate aim of
ensuring equal and fair conditions for all candidates in the electoral
campaign and protecting the free expression of the opinion of the
people in elections. It remains to be determined whether there was
arbitrariness or a lack of proportionality in the authorities’ decisions.
(Para 43-44)
The same time when the Court reiterated that its competence to
verify compliance with domestic law is limited, nevertheless, the
Court considered that, in order to prevent arbitrary disqualification
of candidates, the relevant domestic procedures should contain
sufficient safeguards protecting the candidates from abusive and
unsubstantiated allegations of electoral misconduct, and that
decisions on disqualification should be based on sound, relevant and
sufficient
proof
of
such
misconduct.
(Paras
45-46)
165
The court stated that, the decision to disqualify the applicant was
based on the finding that he had provided free services to voters with
the aim of gaining their support, in the form of financing or carrying
out urban development works which consisted in laying fresh asphalt
and repairing public recreation facilities for children and for the
elderly in some areas of the electoral constituency. The only
evidentiary basis for reaching this finding were several very short
statements by random residents of the area and statements by two
police officers. However, in the Court’s opinion, it is unlikely that
someone could sponsor/carry out large-scale urban development
works in public areas, in plain view of the public without the
existence of strong material evidence (including at least: proof of
financial transactions carried out by the applicant in connection with
the works, contracts signed between the applicant and a construction
company or
construction
workers,
statements
from
these
construction workers showing their links to the applicant, statements
by witnesses who have directly observed the applicant issuing
instructions concerning the works to be carried out, and so on).
The Court considered that the procedure for finding the applicant
responsible for electoral misconduct did not afford him sufficient
guarantees against arbitrariness. The Court also noted that all the
evidence relating to the alleged misconduct by the applicant was
produced with the direct involvement of the police. Such an
initiative by the police as interfering in electoral matters is in itself
rather unusual.
Examining the case issues in accurate manner, the Court found the
statements of “residents” addressed to the police in a manner rather
unusual (were not worded as complaint letters but as letters of
praise; it is also unusual that anyone express his or her gratitude to
the applicant by means of a letter addressed to the police). Some of
the “witnessed residents” made notarised affidavits formally
retracting their written statements to the police, and explaining that
they had been essentially tricked by the police into making those
original statements. Some others stated that they had no prior
knowledge as to who had commissioned the renovation works. With
the exception of the two police officers, none of the witnesses
testified against the applicant during the judicial hearings, only two
witnesses, namely police officers positively identified the applicant
[as the person who had allegedly commissioned the renovation
166
works in question]. However, their statements appeared to be
hearsay evidence, in essence, appear to have been nothing more than
a rumour. In the course of the proceedings in Supreme Court from
the information gathered by the applicant, some of these “residents”
were not residents of the area in question, but these evidences were
not examined. The applicant left without informing in a timely
manner. The decision of ConEC was actually taken post facto, one
day after the request had been sent to the Court of Appeal. The
examination of the issue took place in such unreasonable time-
constraints not affording much time to examine the material in the
case file, and left him unprepared making unable to prepare/procure
arguments. In its judgment the Court of Appeal misrepresented the
statements of certain witnesses. The Supreme Court refused to take
the applicant`s submissions into account. (para 47-58)
In result, the Court concluded that the applicant’s disqualification
from running for election was not based on sufficient and relevant
evidence, the procedures of the electoral commission and the
domestic courts did not afford the applicant sufficient guarantees
against arbitrariness.
5. [Arif] Hajili v. Azerbaijan, Application No. 6984/06, 10 January
2012
6
The applicant stood for the elections to the parliament as a candidate.
There were a total of forty-one polling stations in the constituency.
At the end of election day, according to the copies of the PEC
records in the applicant’s possession, he received the majority of
votes in the constituency. After voting he 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 three Polling Stations had been falsified in favour of
one of his opponents. CEC had issued a decision to invalidate the
election results for the entire Election Constituency where the
applicant stood as candidate. It was substantiated such as there were
violations in 19 polling stations. The applicant lodged an appeal
against that decision with the Court of Appeal, arguing that while the
CEC decision stated that “impermissible alterations” had been made
to the results records of nineteen PECs, in reality such alterations
6
Hajili v Azerbaijan,
http://bit.ly/1JAAGKy
167
had been made to the records of only three PECs. 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. 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; and upheld the CEC
invalidating decision by reiterating the findings made in that
decision. The applicant lodged a cassation appeal, in addition
referred the possibility of ordering a recount of the votes. The
Supreme Court rejected the applicant’s appeal.
After exhausting the domestic remedies, the Applicant applied to
EctHR and claimed the violation of his right to elections granted
under Article 3 of the Protocol 1.
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,
that
the
proceedings
conducted
by
them
be
accompanied by minimum safeguards against arbitrariness and that
their decisions are sufficiently reasoned. (Para 48)
For the present case the Court noted that it has previously examined
a complaint based on very similar facts, in the Kerimova judgment.
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, in the present case it is not possible to establish with
certainty that the applicant would have won the election in his
electoral constituency. In this respect, the Court noted the subsidiary
nature of its role and noted that, it is not the Court’s task to take on
the function of a first-instance tribunal of fact. In this connection, the
Court also reiterated 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. (Para 49)
The Curt noted that, the CEC decision followed a relevant request by
the applicant complaining about alleged irregularities in three
polling stations. 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, resulting in
168
an invalidation of the election results in the constituency as a whole.
Such decision constituted an interference with the applicant’s
effective exercise of his right to stand for election. It remained to be
determined whether this interference was compatible with the
requirements of Article 3 of Protocol 1.
The Court considered that, the decisions of domestic authorities
were not in compliance with Article 3, for essentially the same
reasons as those in the Kerimova judgment. The CEC decision
contained no specific description, and failed to substantiate in which
way these “irregularities” had somehow influence the will of the
voters” in the entire constituency. In regard with the CEC decision
was totally unsubstantiated. 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 and did not give any explanation
of the reasons for such failure/passing up. Secondly, the Court notes
that the domestic authorities ignored the requirements of Article
114.5 of the Electoral Code,
Lastly, 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 (para 56).
Court concluded 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 Article 114.5, EC). 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 (para 57).
6. Mammadov v. Azerbaijan (No.2), Application No. 4641/06, 10
January 2012
7
7
Mammadov v Azerbaijan (No 2),
http://bit.ly/1PrsAlA
169
The applicant stood for the elections to the parliament in 2005, and
according to the applicant, he received the majority of votes in the
constituency. At the end of the election day, but the applicant was
not provided with a copy of the ConEC record of election results.
The ConEC did not officially declare a winner. The applicant
applied to the Central Electoral Commission (“the CEC”) with a
request for the invalidation of the election results in eight polling
stations in total, for which the applicant did not receive PEC records,
and to declare the applicant the winner, as he obtained of the highest
number of votes in the constituency. The CEC issued a decision to
invalidate the election results for the entire constituency. . The
applicant lodged an appeal against that decision with the Court of
Appeal, arguing that while the CEC findings were wrong. The Court
of Appeal refused independently examine the originals of the records
of results, and upheld the CEC invalidating decision. The applicant
lodged a cassation appeal, in addition challenged that the court of
appeal did not examine evidence. The Supreme Court rejected the
applicant’s appeal and upheld the appellate court`s decision.
After exhausting the domestic remedies, the Applicant applied to
EctHR and claimed the violation of his right to elections granted
under Article 3 of the Protocol 1.
For the present case the Court noted that it has previously examined
a complaint based on very similar facts, in the Kerimova judgment.
However, it observes that, unlike the Kerimova judgment, in the
present case it is not possible to establish with certainty that the
applicant would have won the election in his electoral constituency
had the election results not been invalidated arbitrarily. In this
respect, due to the subsidiary nature of its role, it is not the Court’s
task to determine this. In this connection, 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. (para 52)
CEC invalidation decision went manifestly beyond what had been
requested of it by the applicant and resulting in an invalidation of the
election results in the constituency as a whole. Such decision
constituted an interference with the applicant’s effective exercise of
his
right
to
stand
for
election.
(paras
53-54)
170
The Court considered that, the decisions of domestic authorities
were not in compliance with Article 3, for essentially the same
reasons as those in the Kerimova judgment. The CEC decision
contained no specific description, and failed to substantiate in which
way these “irregularities” had somehow influence the will of the
voters” in the entire constituency. In regard with the CEC decision
was totally unsubstantiated. 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 and did not give any
explaination of the reasons for such failure/passing up. Secondly, the
domestic authorities ignored the requirements of Article 114.5 of the
Electoral Code. (paras 57-58).
The court also noted that, despite the fact that the applicant had
repeatedly raised all of the above points in his appeals to the
domestic courts, they failed to adequately address these issues and
reiterated the CEC’s findings (para 59).
In a result, the Court concluded that the decision on the annulment of
the election results in the constituency was arbitrary, as it was in
apparent breach of the the domestic electoral law. There has
accordingly been a violation of Article 3.
7. Kerimli and Alibeyli v. Azerbaijan
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