8
, Applications No. 18475/06;
22444/06), 10 January 2012
Both applicants are well-known opposition politicians. Both
applicants stood for the elections to the parliament in 2005 in
different constituencies. According to the election results declared
by the CEC, both were winners. Then CEC submitted the results to
the Constitutional Court for review and approval. The Constitutional
Court approved the election results in 115 from 121 electoral
constituencies and invalidated the results in the remaining six
constituencies, including the ones where the applicants stood for
election. According to the Applicants` claims that, the decision of
the Constitutional Court lacked any reasoning/substantiation and
factual ground, contained merely common.
8
Kerimli and Alibeyli v Azerbaijan,
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171
The Court noted that the Constitutional Court’s decision gives rise to
serious issues concerning its factual and legal substantiation.
Specifically, the only factual detail referred to in the decision was
that the Constitutional Court had received a letter from the
Prosecutor General’s Office informing it that criminal proceedings
had been instituted against the chairmen and members of ten polling
stations in the first applicant’s constituency for “falsification of
electoral documents”, and against four members of the ConEC of the
second applicant’s constituency for “abuse of official authority”.
However, the Court considered that, in the absence of any further
detailed elaboration, the mere fact that criminal proceedings were
instituted in connection with some alleged and vaguely described
abuses does not, in itself, constitute sufficient and relevant enough a
reason to annul the elections in any given constituency as a whole. In
particular, the Constitutional Court failed to establish whether the
fact that these abuses had actually taken place had been proved and,
if so, whether they had been serious enough to impact on the results
of the election to such an extent as to render impossible the
determination of the electorate’s opinion in each constituency
affected. Moreover, the election results in ten polling stations of the
first applicant’s constituency has been considered by CEC and it was
determined that the overall constituency results had not been
affected by those abuses to a degree requiring the annulment of the
election. (para 38)
The Constitutional Court’s decision failed to specify the breaches
affected the vote count so serious as to render the determination of
the voters’ choice impossible. Moreover, it did not specify
information
regarding
ovservance
of
the
strict procedural
requirements of the Electoral Code concerning the invalidation of
election results had been met, and so on. All of these crucial
questions either remained unanswered or were ignored. In such
circumstances, the Court cannot but conclude that the impugned
decision was unsubstantiated in respect of both factual grounds and
legal reasoning. (para 39)
Moreover, it appears that the affected parties, including each
applicant as a winning candidate, were excluded from the
proceedings. In particular, they had never been given access to any
documentary material or the “specialists’ opinions” allegedly relied
172
on by the Constitutional Court as a basis for its decision or provided
with any other information as to the grounds for this decision.
Neither had they been given an opportunity to participate in the
hearing or to otherwise defend their interests, either in writing or
orally. In the Court’s opinion, whereas the decision of the
Constitutional Court was final and at the same time had a severe
impact on the effective exercise by both the candidates and
thousands of voters in the relevant constituencies of their respective
electoral rights, the failure to afford the affected parties any
procedural safeguards was especially serious as no appeals were
available to remedy the situation. (para 40)
The Court concluded that the Constitutional Court’s decision was
not based on any relevant or sufficient reasons, did not afford any
procedural safeguards to the affected parties, and lacked any degree
of transparency. (para 41)
8. Abil v. Azerbaijan, Application No. 16511/06, 21 February 2012
9
The applicant stood for the elections to the parliament in 2005, and
was registered as a candidate by the ConEC.
In the period of electoral proceedings, the ConEC held a meeting in
the applicant’s absence and decided to apply to the Court of Appeal
with a request to cancel his registration as a candidate owing to
reports of his engaging in activities incompatible with the
requirements of the Electoral Code. In particular, the ConEC noted
that it had received a number of written statements from voters
claiming that the applicant had promised them money in exchange
for their promise to vote for him. The Court of Appeal referring to
the ConEc request for the applicant’s disqualification cancelled his
registration as a candidate. The applicant lodged an cassation appeal.
The Supreme Court dismissed the applicant’s appeal and upheld the
Court of Appeal’s judgment. The Applicant argued that the evidence
used against him had been fabricated, that the persons who had
testified against him were false witnesses.
After exhausting the domestic remedies, the Applicant applied to
EctHR and claimed the violation of his right to elections granted
9
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173
under Article 3 of the Protocol 1.
The Court reiterated that for the purposes of supervision of the
compatibility of the interference with the requirements of Article 3,
the Court must scrutinise the relevant domestic procedures and
decisions in detail in order to determine whether sufficient
safeguards against arbitrariness were afforded to the applicant and
whether the relevant decisions were sufficiently reasoned (para 34)
Furthermore, 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. (para 35)
Turning to the present case, the Court noted that only eight out of
seventeen persons who had written complaints accusing the
applicant of bribery were heard by the Court of Appeal. Seven of
these eight persons testified that they had been offered money by
some unknown people in exchange for a promise to vote for the
applicant. The Court considered that this information, by itself, does
not prove that the alleged offer of a bribe originated from the
applicant. There existed no further evidence linking the applicant
with the alleged actions of those “unknown people” who had
allegedly offered bribes to voters. (para 36) The Court notes that, it
is true that one person testified in court that the applicant had offered
him money personally. However, the Court notes that the applicant
managed to verify that he was not registered in the voter lists of his
constituency and that he had lied in court about his registered
address of primary residence. İt challenged the truthfulness of that
persons statements. However, this objection was ignored by the
domestic courts. (para 37) The ConEC did not inform the applicant
about its hearing, depriving him of the possibility to defend his
position Moreover, the domestic courts failed to take into account,
and provide any reasoned response to, the applicant’s objections and
submissions. (para 39) The Applicant was not afforded with
sufficient procedural guarantees and it was accordingly a violation of
Article
3.
174
9. Khanhuseyn Aliyev v. Azerbaijan
10
, Application No. 19554/06,
21 February 2012
The applicant stood for the elections to the National Assembly of 6
November 2005 as a candidate and the Constituency Electoral
Commission (ConEC) registered him as a candidate. In the process
of election, ConEC decided to apply to the Court of Appeal with a
request to cancel the applicant’s registration as a candidate owing to
the reports of his alleged involvement in activities incompatible with
the requirements of the Electoral Code. The applicant was not
informed about this meeting in advance and was not invited to it.
The Appeal Court cancelled the applicant’s registration in basis of
this request. The applicant lodged an appeal with the Supreme Court,
arguing that the allegations against him had been fabricated and that
the evidence used against him had been tenuous, uncorroborated and
wrongly assessed. In support of his submissions, he attached, inter
alia, the above-mentioned affidavits by the ConEC members. The
Supreme Court dismissed the applicant’s appeal and upheld the
Court of Appeal’s judgment.
After exhaustion of domestic remedies, the applicant lodged
complaint before ECtHR and claimed there has been a violation of
Article 3 of Protocol 1.
The Court noted that the summary of its case-law on the right to
effectively stand for election, as guaranteed by Article 3 of Protocol
No. 1 to the Convention, can be found in, among many other
judgments, Orujov v. Azerbaijan. Relying to this decision the Court
also reiterated that, while the Contracting States enjoy a wide margin
of appreciation; 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 or arbitrary (paras 30 and 34).
The Court noted that in the present case, the decision to disqualify
the applicant was based on the written statements by four voters and
“physical evidence” consisting of several banknotes. For the reasons
specified below, the Court considers that this material, and the
10
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175
manner in which it was examined, did not amount to sound, relevant
and sufficient proof of the allegation that the applicant had attempted
to bribe voters (para35).
The Court stressed that as to the banknotes in the absence of any
special marks or a forensic report on the examination of fingerprints,
these random banknotes, by themselves, could not constitute any
kind of proof that they had been used as an instrument of bribery and
had been given by the applicant to the voters. Accordingly, this so-
called “physical evidence” was irrelevant (para 36). As to the written
statements by four voters, the Court noted that none of those four
persons were invited to be questioned in the relevant hearings by the
electoral commission or the courts and no attempt was made to
obtain any further information corroborating those statements. Given
that there were so few complainants and that their brief written
statements were the only relevant evidence used against the
applicant, the questioning of those voters in person during the
relevant hearings was crucial for the assessment of their personal
integrity and
the
truthfulness
of
their
statements.
In
such
circumstances, the Court considered that the evidence used against
the applicant was not corroborated by further examination and was
not assessed in a manner that would remove serious doubts as to its
reliability (para 37).
In particular, the ConEC did not inform the applicant about its
hearing, did not invite and hear the complainants or otherwise
attempt to carry out a comprehensive assessment of the situation,
and took the decision to request the applicant’s disqualification in
very questionable circumstances given that several members of the
ConEC subsequently claimed that there had been no ConEC meeting
on that date at all (para 39). In the present case, it appears that the
examination of the issue of the applicant’s disqualification took
place without any reasonable advance notice, and as such caught him
by surprise and left him unprepared for the hearing (para 40). The
domestic courts failed to assess the relevance of the applicant’s
submissions (para 41).
Thus, the cancellation of applicant’s registration was happened
without sufficient guarantees against arbitrariness.
176
10. Atakishi v. Azerbaijan, Application No. 18469/06, 28 February
2012
11
The applicant stood for the elections to the National Assembly of 6
November 2005 as a candidate and the Constituency Electoral
Commission (ConEC) registered him as a candidate. In the process
of election, ConEC decided to apply to the Court of Appeal with a
request to cancel the applicant’s registration as a candidate. The
ConEC in this request relied on two basis: firstly, it noted that it had
received a written complaint from a voter (H.S.) claiming that the
applicant had given him money; secondly, the applicant had
regularly insulted his opponents and the government in his campaign
speeches and publications and physically disrupted his opponents’
meetings with voters. The Appeal Court basing on these arguments
cancelled the applicant’s registration of candidacy. The applicant
lodged appeal on this decision and alleged he had not been informed
of the ConEC meeting. The documents were contradictory and
“falsified”. The Court of Appeal had not heard any of the
complainants. As to the “complaints by voters”, the court had not
even attempted to verify whether they had been authored by existing
persons. Moreover, despite the fact that H.S. had sent a retraction of
his accusations to the ConEC and the Court of Appeal and had
personally attended the hearing, the court had refused to hear him.
The Supreme Court dismissed the applicant’s appeal and upheld the
Court of Appeal’s judgment.
After exhaustion of domestic remedies, the applicant lodged
complaint before ECtHR and claimed there has been a violation of
Article 3 of Protocol 1.
The Court noted that the summary of its case-law on the right to
effectively stand for election, as guaranteed by Article 3 of Protocol
No. 1 to the Convention, can be found in, among many other
judgments, Orujov v. Azerbaijan. Relying to this decision the Court
also reiterated that, while the Contracting States enjoy a wide margin
of appreciation; 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
11
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177
imposed in pursuit of a legitimate aim; and that the means employed
are not disproportionate or arbitrary (para 37 and 41).
The Court noted that as to the first ground, the only evidence
available was a written statement by H.S. where he noted that the
applicant had given him money in exchange for his services as an
intermediary in bribing voters. However, the Court notes that H.S.
was never heard in person either by the ConEC or the domestic
courts, despite the fact that, according to the applicant, he was
physically present in the Court of Appeal building during the
hearing. H.S. sent several statements to the relevant courts and other
authorities whereby he repeatedly retracted any statements that could
be construed as accusations against the applicant. However, these
subsequent statements were not taken into account by the domestic
courts. the Court considers that the evidence relied on by the courts
was insufficient and, in any event, was not assessed in a manner that
would remove legitimate doubts as to its reliability (para 43).
As to the second ground for the applicant’s disqualification, the
Court notes that part of the evidence presented by the ConEC in this
regard consisted of several short statements and telegrams by various
persons accusing the applicant, in general terms, of using insults and
offensive language in respect of his opponents. None of these
complaints provided any specific details of inappropriate or illegal
behaviour by the applicant. The courts failed to verify the identities
of the authors of these complaints, to seek more detailed information
from them as to the specific alleged misconduct by the applicant, to
corroborate that information with any additional evidence, or to hear
any of the complainants in person and thus give the applicant an
opportunity to defend himself against their allegations. Thus, these
written statements, in themselves, could not be considered as
proving any factual circumstance, let alone any illegal conduct by
the applicant (para 44). The other part of the evidence presented by
the ConEC consisted of written complaints by opponent candidate.
This situation demanded exceptional scrutiny by the courts charged
with the task of assessing their truthfulness. However, domestic
courts did not conduct such examination. Furthermore, as regards the
legal basis for the applicant’s disqualification on the second ground,
the Court notes that the domestic courts relied on Articles 88.1 and
88.2 of the Electoral Code. However, they failed to provide any legal
reasoning for their decision to class the alleged misconduct by the
178
applicant as falling within the ambit of those provisions. The ConEC
did not inform the applicant about its hearing. The domestic courts
did not examine properly arguments of the applicant The applicant
was not afforded sufficient time to examine the material in the case
file and to prepare arguments in his defence, as he had been notified
of the forthcoming judicial hearing only a very short time before it
began (paras 45-48).
Therefore, candidacy of the applicant cancelled without sufficient
guarantees against arbitrariness.
11. Karimov v. Azerbaijan, Application No. 12535/06, 25 September
2014
12
The applicant stood in the elections to the parliament in 2005 as a
candidate of the opposition party. There were polling stations set up
shortly before the elections exclusively for military servicemen
belonging to military units permanently stationed within the
constituency. The official election results in the constituency showed
that the applicant finished in second place. The winning candidate
received a bit more than him. The Applicant could determine that,
the significant part of his opponent`s total vote count had been cast
in the polling stations created exclusively for military voting. The
applicant lodged a complaint with the CEC requesting invalidation
of the results of the polling stations created exclusively for such
militaries. He complained, inter alia, of that, pursuant to the law
military servicemen should vote in ordinary polling stations. Special
military polling stations should be set up only in exceptional
circumstances. In this case, there were no such exceptional
circumstances. The ConEC applied the legislation not in proper
manner. In support of the above complaints, the applicant submitted
copies of written observations made at those polling stations. The
CEC dismissed the claim. The Applicant appealed with Court of
Appeal, but it rejected his appeal. The Applicant filed cassation
complaint against this decision. The Supreme Court dismissed his
complaint as well.
After exhausting the domestic remedies, the applicant applied to
EctHR and claimed the violation of his right to elections granted
12
Karimov v Azerbaijan,
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179
under Article 3 of the Protocol 1.
In particular, the Court has had regard to the observations made in
the Final Report of the OSCE/ODIHR Election Observation Mission
regarding the military voting in the 2005 parliamentary elections.
According to the rules military personnel were to vote in ordinary
polling stations. The observers noted that special military polling
stations had been set up in the absence of the requisite exceptional
circumstances. They also noted that the election procedures in those
polling stations had lacked transparency because the electoral
authorities had delegated responsibility for the organisation and
conduct of military voting to the Ministry of Defence. Considering
the Article 35.5 of the Electoral Code, establishing the
rule of
voting of military personnel, in this connection, the Court conculded
that, in order for the exception to apply to set up military polling
stations, the following conditions were required by Article 35.5 of
the Electoral Code: (i) the unit had to be located outside a populated
settlement; (ii) the travel time by public transport to the closest
ordinary polling station had to exceed one hour; and (iii) the total
number of servicemen in the unit had to exceed fifty. It is clear from
the wording of Article 35.5 that all of the above conditions had to be
met for the exception to apply; in other words, those three conditions
were cumulative and not alternative. In the present case, the total
number of personnel serving in each of the two military units in
question exceeded fifty. It follows that, in relation to the conditions
required by the exception stipulated by Article 35.5 of the Electoral
Code were not satisfied.
The fact that the “voting results” from those polling stations were
then taken into account by the electoral authorities, with a significant
impact on the overall election result. The Court found out as
unreasonably the domestic courts rejection of the applicant`s
complaint on the erroneous application of the legislation. For the
analogous unreasonably rejection practice the court referred to
Namat Aliyev case (compare Namat Aliyev, cited above, § 90).
Subsequently, the Court found out the violation of right to free
elections.
180
12. Tahirov v. Azerbaijan, Application No. 31953/11, 11 June 2015
13
The applicant nominated himself to stand as an independent
candidate in the parliamentary elections of 7 November 2010,
applied for registration as a candidate, and submitted to the
Constituency Electoral Commission (“the ConEC”) voter signatures
collected which legislation required in support of his candidacy.
ConEC refused the applicant’s registration application and justified
its decision that expert group found that voter signatures required in
support of candidacy had invalid (falsified) and number of the
remaining valid signatures was below number which legislation
required. The applicant lodged a complaint to Central Election
Commission (CEC). CEC dismissed this complaint. The applicant
lodged an appeal to Appeal Court on decision of CEC. Appeal Court
dismissed this complaint. The applicant lodged further appeal to
Supreme Court on decision of Appeal Court. The Supreme Court
dismissed this complaint.
After exhaustion of domestic remedies, the applicant lodged
complaint before ECtHR, alleged, in particular, that he had been
arbitrarily refused
registration
as
a
candidate
in
the
2010
parliamentary elections, and claimed this has been a violation of
Article 3 of Protocol 1.
The Court found that in the present case the following should be
determined: the procedure for verifying the compliance with this
eligibility condition was conducted in a manner affording sufficient
safeguards against an arbitrary decision. The Court noted that it pay
attention to report of OSCE/ODIHR Mission in 2010 parliamentary
elections in this issue. The report notes that the OSCE observers
expressed serious concerns regarding the impartiality of ConECs,
which generally appeared to favor candidates nominated by the
ruling party or incumbent independent candidates, particularly
during the candidate registration process where all YAP-nominated
candidates were registered while over half of opposition-nominated
candidates and many self-nominated candidates were refused
registration. With regard to the registration process, they further
observed a general lack of openness and transparency in the activity
of many ConECs and noted that the electoral commissions did not
13
Tahirov v Azerbaijan,
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181
respect a number of statutory safeguards. The provisions of the
Electoral
Code
were
implemented
unfairly restrictively
and
prospective candidates were denied the right to stand based on minor
technical mistakes and without due consideration of the principle of
proportional responses to errors, enshrined in domestic legislation.
Furthermore, complaints challenging ConEC decisions refusing
registration, most of which were dismissed by the CEC as
groundless without strict examination.
The Court noted that despite a question put by the Court to the
Government in this respect, the Government have not provided
sufficiently specific information about the qualifications and
credentials of the experts in the present case. The Government
simply noted that all working group experts had been appointed
from among “employees government agencies”, without specifying
whether the experts charged with conducting the handwriting
analysis were actually qualified to do so by their occupation. As a
result, the Court found that experts were not reliable for professional
occupancy.
In addition, the Court noted that in the present case, the decision of
expert groups on invalid signatures were in arbitrary character.
Relevant examination neither conducted by election commissions.
Electoral commissions respected neither of the safeguards mentioned
too. Procedure in CEC was not qualified.
The domestic courts did not address the applicant’s complaints about
any of the above-mentioned deficiencies either, even though the
applicant’s appeals contained prima facie well-founded complaints,
referred to the relevant provisions of the domestic law, and disclosed
an appearance of arbitrariness in the electoral commissions’
decisions In this part Court relied as a precedent decisions of Namat
Aliyev and Hasan Karimov’s cases. Such conditions were not
compatible with the rule of law and protecting the integrity of the
election.
As a result the Court found that there has been a violation of Article
3 of Protocol 1.
182
THE FINALIZING SUMMARY
of THE PRECEDENT CASES in respect to AZERBAIJAN
REPUBLIC
related to THE ARTICLE 3 of THE PROTOCOL 1
(Includes revision of both judgments of ECtHR and decisions of the
Committee of Ministers of the Council of Europe)
THE European Court of Human Rights (ECtHR) adopted 12
judgements on Azerbaijan Republic regarding violations of the
Article 3 of the Protocol 1 (right to free and fair elections) of the
European Convention
for Protection
of Human Rights
and
Fundamental Freedoms (ECHR).
These violations were of various character related to non-observance
of the procedural rules stipulated by election law for the period of
elections, arbitrarily committed in respect to the rights of opposition
and independent candidates by the election commissions, and by the
courts as well.
These judgments can be classified as following:
1)
Violations related to non-registering of the candidates –
Seyidzade case, Tahirov case;
2)
Violations
regarding
annulation
of
the
registration
of
candidacy – Orujov case, Khanhuseyn Aliyev case, Abil case,
Atakishi case;
3)
Violations regarding baseless cancellation of the election
results – Karimova case, Mammadov #2 case, Arif Hajili case;
4)
Violations related to the election violations and other offences
and inefficiency of the investigation of the complaints against
such violations. – Namat Aliyev case, Hasan Karimov case;
5)
Violations related to cancellation by the Constitutional Court
the MP mandate obtained as result of elections, without
complying with the procedures set by the electoral legislation –
Karimli and Alibayli case.
It should be mentioned that the Court found out the below
mentioned violations:
A)
In the case of “Seyidzade v. Azerbaijan”, the Court pointed
to the issue of the quality of the law and noted that, legislation
183
and relevant juridical practice do not clearly give a definition for
“clergyman” and “professional religious activity” terms. In such
circumstances, the refusal to register candidacy of the applicant
(though he has already resigned from all positions), fails to be in
compliance with the principle of foreseeability;
B)
In all other judgments related to Azerbaijan, the Court
found out the violations mainly based on two factors: firstly, the
decisions were not substantiated and secondly, the procedural
safeguards were not applied.
Only the one – Tahirov case from abovementioned ones was
regarding 2010 parliamentary elections, as all the rest were regarding
2005 parliamentary elections.
Other decisions (judgments) adopted on Azerbaijan were regarding
lack of sufficient guarantees; and regarding unreasonable and
arbitrarily refusal of the election complaints both by electoral
commissions and the domestic courts.
With regard to the decisions of the electoral commissions
(constituency electoral commissions
(“ConEC”) and Central
Election Commission
(“CEC”), the ECtHR, in particular, found
the following irregularities:
14
a.
the applicants’ complaints and evidence were dismissed
without motivation;
b.
the statements and witness testimony against the applicants
were accepted without a proper examination to determine their
truthfulness and credibility (see in particular the Namat Aliyev
case and the sub-group Orujov);
c.
the lack of independent examination and reasoning in the
decisions cancelling the applicants’ registration as candidates or
their election;
d.
the applicants’ lack of participation in the hearing (see in
particular the Orujov sub-group).
14
Pending cases: current state of execution (Namat Aliyev v Azerbaijan)
http://bit.ly/1hzC584
184
With regard to the decisions of the domestic courts (including the
Supreme Court), the Court, in particular, found the following
shortcomings:
a.
the refusal to examine evidence submitted and failure to
take steps ex officio to clarify outstanding issues owing to
excessive formalism stemming from the civil procedure rules
(see in particular the Namat Aliyev case);
b.
the domestic courts merely and simply reiterated the
findings made by the electoral commissions;
c.
the applicants did not have sufficient time to prepare their
defence in the expedited procedure;
d.
the erroneous application of the electoral law.
Note: In Gambar and others case (2010) the Court accepted the
unilateral declaration of the Government to eliminate electoral
irregularities and held the decision to strike out of the list the
applications. The violations in the case uniting seven cases had
similarities with violations in the Namat Aliyev case.
The Court stated regarding the provisions of the legislation in
the cases related to Azerbaijan as following:
a)
In the case of Seyidzade the Article 14 of the Electoral
code of Azerbaijan Republic (incompatibility of the positions) –
it was determined that, in this and other provisions the definition
of clergyman was not stipulated clearly;
b)
In the cases of Kerimova, Arif Hajılı, Mammadov No 2
Court came to conclusion that the Articles 106 and 114.5 of the
AR EC was applied erroneously;
c)
In the cases of Orujov, Abil, Khanhuseyn Aliyev and
Atakishi it was concluded that the Articles 106 and 114.5 of the
AR EC were applied erroneously;
d)
In the cases of Karimli and Alibayli it was concluded that
Articles of AR EC 108.4, 112.8, 114.5, 170.2.2 were not observed
by the Constitutional Court;
e)
In the case of Karimov it has been found that, Article 35.5 of
the
EC
of
AR
was
violated.
185
The Committee of Ministries of the Council of Europe (CMCE) - the
body which has the function to control execution of ECtHR
judgements, started to control cases on Azerbaijan which had been
adopted since 2013.
Prior to review of the CMCE meetings on execution, it is important
to mention the general conclusion of CMCE with regard to such
execution activity. In 2014-2015 years CMCE came to conclusion
that the following results in execution cases were achieved:
1) Concerning the electoral commissions, the Committee considered
that the reforms adopted in addition to training measures, and in
particular, the introduction of expert groups, would not be
sufficient to resolve the problems revealed as regards the
independence, transparency and legal quality of the procedure
before these commissions;
2) Regarding the effectiveness of judicial review, the Committee
noted with interest the measures adopted (including training
measures; the introduction,
in 2011,
of
the Code of
Administrative Procedure for electoral disputes to remedy the
excessive formalism previously imposed by the Code of Civil
Procedure; and a series of measures to improve the independence
of the judiciary, particularly in the light of the recommendations
made during expertise in the framework of the Eastern
Partnership); but noted at the same time that the effectiveness of
these reforms would have to be demonstrated in practice.
At the meeting of CMCE #1179, held on September 24-26, 2013,
initial decision regarding supervision (the execution case was
commonly named as “Namat Aliyev Group”) on 9 decisions out of
the decisions accepted regarding the Republic of Azerbaijan
(excluding only Seyidzade case for its differences in its substance,
Karimov case and Tahirov case as the decision was not adopted in
respect to them yet) was adopted.
CMCE began its supervision on these cases against Azerbaijan under
enhanced procedure. As it is known, CMCE has two procedures on
the supervision over execution of the decision: “standard procedure”
and “enhanced procedure”. The rules regarding enhanced procedure
are being applied alongside with many other cases by the CMCE in
186
respect to the cases where the Court and the Committee of the
Ministries have found structural and/ or complex problems. CMCE
has specified the electoral cases related to Azerbaijan as a complex
problem.
At the meeting of CMCE #1179, held on September 24-26, 2013, in
the decision accepted in respect to the Republic of Azerbaijan in
the case of Namat Aliyev Group, it was mentioned as following:
15
-
recalled that these cases concern various violations of Article 3
of Protocol No. 1 in that the electoral commissions and the
courts decided in an arbitrary manner and without motivation
upon the complaints of the applicants (members of the
opposition parties or independent candidates) regarding the 2005
parliamentary elections, and that the [domestic] procedures
before those instances did not afford safeguards against
arbitrariness;
-
underlined the importance, in every democratic society, of an
electoral system containing remedies to prevent arbitrariness;
-
regarding the individual measures [issued by the Court], noted
that it is not possible to eliminate the effects of the violations
otherwise than by the just satisfaction awarded by the Court as
the elections of November 2005 had been completed and their
results confirmed as final;
-
as concerns the general measures, noted the training and
awareness-raising activities put in place for the members of the
electoral commissions and invited the authorities to provide an
assessment regarding the impact of these activities;
-
[CM] considered, however, that these activities alone do not
respond to the findings of the Court, in particular the Court’s
conclusions
that
the procedures
before the
electoral
commissions and the national courts did not afford safeguards
against arbitrariness;
-
consequently invited the authorities to provide, as a matter of
urgency, a consolidated action plan with the measures taken or
underway, including legislative or statutory, to put in place such
safeguards;
-
decided to resume consideration of these issues at their 1186th
meeting (December 2013).
15
Decision adopted at the 1179th meeting (September 2013)
http://bit.ly/1JbNWSs
187
Accordingly, the CMCE came to conclusion that, the important
problem consists of the application of arbitrary unsubstantiated and
arbitrary decisions by the election commissions and courts in respect
to the complaints of the candidates, and of the absence of procedures
affording adequate safeguards against arbitrariness. It invited the
Azerbaijani Government to file and apply complex action plan
(including legislative and instructive changes) in order to reach out
the mentioned instructions.
In its meeting #1186 of 3-5 December 2013, the CMCE repeated the
results obtained at the previous meetings, calling the Azerbaijani
Government to present complex action plan. Taken into account that
the Government of Azerbaijan introduced a new information in this
meeting, in order to examine and assess this information it scheduled
the next supervision for the meeting #1193 (March, 2014).
16
Taking into account that the Azerbaijani Government submitted
relevant information very late – in February 2014, the CMCE,
during its meeting #1193 held on 4-6 March 2014, scheduled
revision of execution work to the meeting #1201 planned for June,
2014.
17
At the meeting #1201, held on June 2014 regarding the case of
Namat Aliyev Group, CMCE mentioned the following:
18
-
stressed the need to rapidly overcome the important problem of
the arbitrary application of legislation and of the absence of
procedures affording adequate safeguards against arbitrariness
and that this requires remedial action in a number of areas;
-
strongly encouraged the authorities to rapidly undertake further
reforms, taking into account the recommendations made in the
context of the Eastern partnership project;
-
noted with interest that judicial review in electoral matters is,
since 2009, no longer governed by the rigid rules of the Code of
Civil Procedure, but by the new, less formalistic, Code of
Administrative Procedure and invited the authorities to provide
a more detailed explanation of the way in which the new Code
16
Decision adopted at the 1186th meeting (December 2013)
http://bit.ly/1hzzgDR
17
Decision adopted at the 1193rd meeting (March 2014)
http://bit.ly/1Loz1VT
18
Decision adopted at the 1201st meeting (June 2014)
http://bit.ly/1WKKqph
188
is meant to resolve the problems revealed by the Court’s
judgments;
-
noted the potential of targeted practical guidance from the
Supreme Court and stressed the importance of continued
training efforts to ensure the efficiency of judicial review;
-
regretted that no information has been provided regarding the
shortcomings
established
in the proceedings
before
the
Constitutional Court and urged the authorities to rapidly submit
this information;
-
as regards the functioning of the electoral commissions,
expressed regret that the information submitted, although
extensively describing the present situation, does not allow a
comprehensive evaluation of progress made as compared to the
situation criticised by the Court and invited the authorities to
submit, without delay, a detailed impact assessment of the
changes and how they may prevent new similar violations;
-
strongly encouraged the authorities, in the pursuit of their efforts
to resolve the problems raised by the present group of cases, to
take full advantage of the different co-operation and assistance
programmes organised or proposed by the Council of Europe,
notably in the context of the recently adopted Action Plan for
Azerbaijan;
-
decided, accordingly, to resume consideration of these questions
at the 1208th meeting (September 2014).
At the meeting #1208, held on June 23-25 September 2014
regarding the case of Namat Aliyev Group, CMCE mentioned:
19
-
concerning the functioning of electoral commissions, noted in
particular the clarifications given regarding the expert groups set
up in 2008 to assist those commissions but considered, however,
that this reform does not appear to resolve the problems revealed
by the Court’s judgments as regards the independence,
transparency and legal quality of the procedure before these
commissions;
-
therefore called upon the authorities to provide further
information on the above issues and on the additional measures
envisaged to remedy the outstanding problems and encouraged
19
Decision adopted at the 1208th meeting (September 2014)
http://bit.ly/1U6czCY
189
them to pursue their efforts to train the members of the electoral
commissions and of the expert groups;
-
concerning the functioning of the judiciary, noted with interest
that the introduction, in 2011, of the Code of Administrative
Procedure for electoral disputes, appears to respond to a series
of important problems raised by the Court’s judgments in
the Namat Aliyev group of cases as regards the excessive
formalism of the courts when examining appeals;
-
as regards, in particular, the independence of the judiciary, noted
with interest the amendments adopted to the law on judges and
courts in June 2014 reinforcing, notably, the budgetary
independence of the Judicial and Legal Council, amendments
which seem to respond to certain recommendations made in the
context of the Eastern Partnership project;
-
urged, however, the authorities to explore further measures,
taking into account the different proposals presented before the
Committee, aimed at limiting the influence of the executive
within the Judicial and Legal Council in the area of the
nomination, promotion and disciplinary sanctions of judges; at
reinforcing the Council’s competencies in these areas; and at
improving the relevant regulatory framework;
-
underlined again the potential of targeted practical guidance
from the Supreme Court;
-
underlined further the importance of training efforts to ensure
the efficiency of judicial control and invited the authorities to
take into account the additional possibilities offered in this
respect by the Action Plan of the Council of Europe for
Azerbaijan 2014-2016;
-
as regards the shortcomings of the procedure before the
Constitutional Court identified by the European Court, invited
the authorities to provide further clarifications concerning the
results of the examination of the Kerimli and Alibeyli judgment
by the General Assembly of the Constitutional Court in October
2012;
-
invited the authorities to provide, in particular on the actions
envisaged or adopted to resolve them, and decided to resume
detailed examination of those issues at their meeting of March
2015.
20
Decision adopted at the 1222th meeting (March 2015)
http://bit.ly/1MJHPc0
190
At the meeting #1222, held on 12
th
of March 2015 regarding the
case of Namat Aliyev Group, CMCE mentioned:
20
-
as regards the independence, transparency and legal competence
of electoral commissions, noted that the recent information
provided is still limited to training for members of these
commissions, and reiterated that such measures are not
sufficient of themselves to solve the problems identified by the
Court;
-
as regards the effectiveness of judicial review, noted with
interest the reforms achieved and, more recently, those of 30
December 2014, aimed notably at further limiting the influence
of the executive within the Judicial and Legal Council; noted at
the same time that the effectiveness of these reforms will have to
be demonstrated in practice;
-
reiterated the importance, in view of the imminence of the next
legislative elections in November 2015, of properly functioning
electoral commissions and of courts with the capacity to review
the legality of the decisions of these commissions;
-
therefore urged the authorities to initiate, without delay, any
action capable of further improving the system of control of the
regularity of these elections in order to prevent any arbitrariness
and, in particular to:
a) co-operate with the Venice Commission and make full
use of the additional possibilities offered by the Action Plan
of the Council of Europe for Azerbaijan;
b) make sure that a clear message is sent to electoral
commissions by the highest competent authorities that no
illegality nor arbitrary action will be tolerated;
-
underlined, in this context, the crucial importance of targeted
practical guidance from the Supreme Court, based on the
European Court’s judgments, complemented, if necessary, by
appropriate instructions to electoral commissions;
-
also underlined the importance of ensuring that the proceedings
before the Constitutional Court provide the guarantees required
by the Convention, in particular, as regards the right to appear in
person before it and with regard to transparency (case of Kerimli
and
Alibeyli).
191
-
invited the authorities to provide their answers and decided to
resume consideration of these issues at their 1230th meeting
(June 2015).
At the meeting #1230, held on 9-11 June 2015, regarding the case
of
Namat
Aliyev
Group,
the
CMCE
reiterated
the
grounds/principals adopted in the meeting held in March 2015.
Moreover, respectively with conduction of some issues practically
CM stressed the following:
21
-
training measures, in particular as regards the requirements of
the Convention, both for members of electoral commissions and
for judges to improve their sensitivity towards the requirements
of a comprehensive preparation of cases in electoral matters and
for the reasoning of decisions;
-
measures to be taken at the level of electoral commissions to
ensure the legal capacity of expert groups, notably by ensuring
that qualified lawyers are always included among the members
of these groups, and by moreover organising their procedure to
ensure the transparency and independence required by the
Convention;
-
the development of jurisprudential guides, in particular through
a resolution of the Plenum of the Supreme Court (based on the
new Code of Administrative Procedure, applicable for the first
time in parliamentary elections);
-
ensuring, by appropriate means, the right of parties to participate
in the proceedings before the Constitutional Court and the
transparency of the proceedings before it.
At the same time, due to the forthcoming 2015 parliamentary
elections CM referring to the decision of March 2015 and repeating
the position stipulated thereby, emphasized the importance to
conduct urgent measures indicated in decisions regarding all
execution cases. The Committee also noted that the Government did
not furnished any renew information to the Committee in respect to
concrete measures required with the decision adopted in March
2015.
21
Decision adopted at the 1230th meeting (June 2015)
http://bit.ly/1Jbznwd
192
CM appointed to continue the supervision on execution case of
Namat Aliyev Group at the meeting #1236 of the CM planned to be
held in September 2015.
RESUME:
The Government of Azerbaijan did not take effective steps to meet
requirements of CMCE issued in respect to it in the case of Namat
Aliyev group. CMCE concluded that the violations found out by
ECtHR in the electoral cases were specifically structural and
complex. In this regard, enhanced procedure of supervision in
respect to the case of Namat Aliyev was launched. CMCE required
the Azerbaijani Government to make the necessary amendments
during execution at the election commissions and the courts.
However, steps made by the Azerbaijani Government on the
execution were incomplete. As a result, CMCE found measures
conducted by the Government of Azerbaijan unsatisfactory. On the
other hand, it was mentioned that reforms in the field of the judicial
supervision are being
applied. CMCE
considered that the
reformative measures implemented in the judicial supervision should
be reflected in practice.
The conclusion on the topic reviewed is that the Republic of
Azerbaijan failed to apply the effective reforms capable to ensure
necessary reasonable procedural safeguards in the election system in
order to grant electoral rights. With great probability such reforms
will not be ready until the Committee’s meeting #1236 planned for
September
2015
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