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FIRST
SECTION
CASE OF ORUJOV v. AZERBAIJAN
(Application
no. 4508/06)
JUDGMENT
STRASBOURG
26
July 2011
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 Orujov v.
Azerbaijan,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
George Nicolaou,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4508/06) 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 Nadir Oruj oğlu Orujov (“the applicant”), on 27
December 2005.
- The
applicant was represented by Mr N. Abdullayev, a lawyer
practising in Azerbaijan. The Azerbaijani Government (“the
Government”) were represented by their Agent, Mr Ç. Asgarov.
- The
applicant alleged, in particular, that his right to stand for
election, as guaranteed by Article 3 of Protocol No. 1 to the
Convention, had been infringed.
- On
9 June 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 1957 and lives in Baku.
- The
applicant applied for registration as an independent candidate for
the forthcoming elections to the Milli Majlis (Parliament) of
6 November 2005. On 19 August 2005 the Constituency
Electoral Commission (“the ConEC”) for Nasimi First
Election Constituency no. 21, a single-mandate constituency in Baku,
registered him as a candidate.
A. Allegations of breach of electoral law by the
applicant
- On
26 October 2005 Police Office No. 19 of the Nasimi District Police
Department informed the ConEC that the applicant was privately
funding certain urban improvement works (such as laying new asphalt
and repairing public recreation facilities for children) in some
public areas of his constituency, allegedly with the purpose of
winning over the support and votes of the local residents, in breach
of the requirements of the electoral law. To this effect, the police
drew up a record, signed by three police officers and two employees
(A.A. and V.Q.) of the local housing utilities committee responsible
for the residential buildings in question, which stated that the
applicant had “laid fresh asphalt in front of the residential
buildings indicated on the attached drawing ... and this fact [was]
confirmed by the signatures below”.
- In
support of this submission, the police office submitted handwritten
statements by several local residents, all of which were addressed
directly to the police and expressed gratitude to the applicant for
the work he had carried out in their neighbourhood. While some of the
statements were dated 26 October 2005, two statements were dated 27
October 2005.
- In
particular, a statement by I.K., dated 26 October 2005 and addressed
to Police Office No. 19, read as follows:
“I have resided at the above-mentioned address
since 1989. During this time, no renovation has been done in the
courtyard [of our building]. But in the last month a lot of
renovation work has been carried out in the courtyard ... [a
description of specific improvements follows].
The above-mentioned works were organised and carried out
by our respected neighbour ... Nadir Orujov. He is a person who is
willing to share all the problems of the entire neighbourhood and to
assist [in resolving these problems]. We wish this person only
victory in the upcoming elections”.
- A
statement by G.N., dated 27 October 2005 and addressed to Police
Office No. 19, read as follows:
“In reply to the questions asked of me, I inform
you that Nadir Oruj oglu Orujov, who has nominated himself as a
candidate [for the parliamentary elections], has carried out
benevolent renovation works in our courtyard in the pre-election
period. He has laid fresh asphalt in front of the buildings. I have
written this statement myself. I confirm [the authenticity of] my
signature”.
- A
statement by S.A., dated 27 October 2005 and addressed to Police
Office No. 19, read as follows:
“I inform you that Nadir Oruj oglu Orujov, who has
nominated himself as a candidate [for the parliamentary elections],
is laying fresh asphalt in front of the buildings [in our courtyard].
He is a good person. I have written this statement myself. I confirm
[the authenticity of] my signature.”
- Other
statements were of a similar content.
B. Decision of the electoral authorities to seek
cancellation of the applicant’s candidacy
- According
to an extract from the minutes of the ConEC meeting held on 28
October 2005, made available to the applicant and later submitted by
him to the Court, the ConEC decided as follows:
“1. To take into consideration the statements by
voters ...
2. To confirm, based on the statements and
other material submitted, breaches of Articles 88.4.4 and 88.4.5 of
the Electoral Code by Nadir Oruj oglu Orujov, who is registered as a
candidate for the elections to the Milli Majlis.
3. In accordance with Article 113.2.3 of the
Electoral Code, to apply to the Court of Appeal with a request for
the cancellation of the applicant’s registration as a candidate
owing to the breach of the requirements of Articles 88.4.4 and 88.4.5
of the Electoral Code. ...”
- The
full copy of the same minutes of the above ConEC meeting, as
submitted by the Government, indicates that this meeting was held on
29 October 2005.
- By
a letter of 28 October 2005, the ConEC submitted the cancellation
request to the Court of Appeal. The request stated, inter alia:
“[C]andidate Nadir Oruj oglu Orujov has breached
the requirements of Article 88 of the Electoral Code and thus
violated the rights of other candidates. There have been repeated
oral submissions to [the ConEC] concerning his illegal actions.
Finally, citizens have applied to Police Office no. 19 of the
Nasimi District Police Department and requested [the police] to put
an end to his illegal actions. ... It has been proved that [the
applicant] conducted [certain renovation works], in breach of
Articles 88.4.4 and 88.4.5 of the Electoral Code, with the purpose of
buying votes. ...”
- According
to the applicant, he was not informed about the ConEC’s request
in a timely manner.
C. Judicial proceedings concerning the cancellation of
the applicant’s candidacy
- The
Court of Appeal examined the case the next day, at 11 a.m. on
Saturday 29 October 2005.
- According
to the record of the court hearing, the court examined the documents
submitted by the ConEC and heard a number of witnesses. In
particular, two police officers, F. Zamanov and R. Samadov,
testified that, according to “residents of the buildings”
in question, the applicant had carried out unauthorised urban
improvement works in the constituency.
- The
court also heard six local residents. It appears that three of them
(G.N., R.I. and V.Q.) had submitted handwritten statements to the
police earlier. These three witnesses told the court that they did
not know the applicant personally and had not known who had carried
out the renovation works, that on 26 October 2005 police officer
F. Zamanov had approached each of them individually on the
street, engaged them in conversation and informed them that the works
had been carried out by the applicant, and that F. Zamanov had
then asked them to write a “thank-you note” expressing
their gratitude to the applicant for his efforts on behalf of the
community. The witnesses said that they had not been told that their
statements would be used against the applicant later.
- Of
the remaining three local residents, one stated that she did not know
who had carried out the urban improvement works near her home, and
two stated that the works had been carried out by the local residents
themselves at their own expense.
- In
its judgment of 29 October 2005, consisting of one and a half typed
pages, the Court of Appeal summarised the above-mentioned witness
statements as follows:
“... witnesses F. Zamanov and R. Samadov
confirmed that [the renovation works] at [the location in question]
had been carried out under the instructions and with the assistance
of the candidate for the elections to the Milli Majlis, N.O. Orujov.
This circumstance was also confirmed by witnesses [R.I. and G.N.]
when questioned at the court hearing. ...
Witnesses [V.Q. and M.M.], when questioned at the court
hearing, stated that they did not know who had laid the fresh asphalt
and carried out the renovation works, while witnesses [Q.H. and G.V.]
stated that these renovation works had been carried out by the local
residents themselves”.
- The
court then directly proceeded to a finding that the applicant, by
carrying out renovation works in public areas “with the aim of
winning over voters” and “promising to provide assistance
to voters in return for their votes”, had attempted to
influence the voters’ opinion in a manner prohibited by Article
88.4 of the Electoral Code. The court therefore decided to cancel the
applicant’s registration as a candidate.
- On
31 October 2005 the applicant enquired as to the identity of the
local residents who had testified against him. He discovered that two
of the persons (S.A. and T.T.) who had complained about him to the
police did not actually live in his constituency and had used false
addresses in their written submissions.
- Three
other witnesses (I.K., G.N. and V.Q.) made notarised affidavits
addressed to the Supreme Court in which they retracted their previous
handwritten submissions to the police, claiming that, in fact, none
of them had known whether the renovation works had actually been
carried out by the applicant, and that they had been either pressured
or tricked by the police into making these statements, without being
informed that the police intended to use them against the applicant.
- The
applicant lodged a cassation appeal with the Supreme Court, arguing
that the evidence used against him had been fabricated, that the
Court of Appeal had made manifest errors in examining the evidence
and had based its decision on unproven allegations, and that
therefore his registration had been cancelled arbitrarily. With his
cassation appeal, he also enclosed the witness affidavits mentioned
above.
- On
3 November 2005 the Supreme Court dismissed the applicant’s
appeal and upheld the Court of Appeal’s judgment of 29 October
2005. It refused to admit the new evidence submitted by the applicant
challenging the reliability of the original evidence used against him
(including the witnesses’ affidavits retracting their previous
accusations in respect of the applicant); it noted that the factual
circumstances of the case had been duly established by the lower
court and that the Supreme Court could examine the case only on
points of law. Furthermore, the Supreme Court stated that the lower
court had applied the material law correctly and complied with the
requirements of procedural law.
II. RELEVANT DOMESTIC LAW
A. Electoral Code
- Article
88.4 of the Electoral Code of 2003 provides as follows:
“88.4. Candidates ... are prohibited
from gaining the support of voters in the following ways:
88.4.1. giving money, gifts and other
valuable items to voters (except for badges, stickers, posters and
other campaign materials having nominal value), except for the
purposes of organisational work;
88.4.2. giving or promising rewards based on
the voting results to voters who were involved in organisational
work;
88.4.3. selling goods on privileged terms or
providing goods free of charge (except for printed material);
88.4.4. providing services free of charge or
on privileged terms;
88.4.5. influencing the voters during the
pre-election campaign by promising them securities, money or other
material benefits, or providing services that are contrary to the
law.”
28. According
to Articles 113.1 and 113.2.3 of the Electoral Code, the relevant
electoral commission may request a court to cancel the registration
of a candidate who engages in activities prohibited by Article 88.4
of the Code.
- Complaints
concerning decisions of electoral commissions must be examined by the
courts within three days (unless the Electoral Code provides for a
shorter period). The period for lodging an appeal against a court
decision is also three days (Article 112.11).
B. Code of Civil Procedure
- Chapter
25 of the Code of Civil Procedure sets out rules for the examination
of applications concerning the protection of electoral rights (or the
right to participate in a referendum). According to Article 290, such
applications must be submitted directly to the appellate courts in
accordance with the procedure established by the Electoral Code.
- Applications
concerning the protection of electoral (referendum) rights must be
examined within three days of receipt of the application, except for
applications submitted on election day or the day after election day,
which must be examined immediately (Article 291.1). The court must
hear the case in the presence of the applicant, a representative of
the relevant electoral commission and any other interested parties.
Failure by any of these parties to attend the hearing after due
notification does not preclude the court from examining and deciding
the case (Article 291.2).
- The
appellate court’s decision can be appealed against to the
higher court (the court of cassation) within three days. This appeal
must be examined within three days, or immediately if submitted on
election day or the next day. The decision of the court of cassation
is final (Article 292).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1
TO THE CONVENTION
- Relying
on Article 3 of Protocol No. 1 to the Convention and Article 13
of the Convention, the applicant complained that his registration as
a candidate for the parliamentary elections had been cancelled
arbitrarily. The Court considers that this complaint falls to be
examined only under Article 3 of Protocol No. 1 to the Convention,
which 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
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the aim of Article 88.4 of the Electoral
Code was to ensure equal and fair campaign conditions for all
candidates. Disqualification of candidates who engaged in various
forms of illegal vote-buying had the legitimate aim of protecting the
free expression of the opinion of the people in elections.
- The
Government maintained that the applicant had been disqualified
because he had attempted to influence voter choice by providing free
services and promising goods and money to voters. According to the
Government, several residents had applied to the Nasimi District
Police Department “complaining about the infringement of the
law by the applicant during the electoral campaign” and, based
on these complaints, the police had “carried out inquiries”
and discovered that the applicant was indeed funding the laying of
fresh asphalt and the repair of public recreation facilities for
children and for the elderly, with the aim of influencing the local
residents’ votes.
- The
Government argued that the domestic courts had examined the case
fairly and that their decisions were well-founded and based on the
relevant witness testimonies which confirmed that the applicant had
provided free services in breach of Article 88.4 of the Electoral
Code. The Government further argued that the decision by the Court of
Appeal to hold a hearing the very next day after the receipt of the
ConEC’s submission was based on the law, which required the
courts to examine matters relating to elections within three days of
their submission. Therefore, contrary to the applicant’s
claims, the immediate judicial hearing did not breach the applicant’s
rights.
- The
applicant submitted that he had had nothing to do with the urban
improvement works in question and that, according to the information
available to him, these works had actually been sponsored by two
other, pro-government candidates, one of whom had ultimately won the
election. The applicant argued that the decision to disqualify him
had been arbitrary and based on flimsy, insufficient, unreliable,
inadmissible and even fabricated evidence. He noted that the few
witnesses who had allegedly complained about him to the police had
made their initial statements under pressure and had subsequently
retracted those statements during the judicial proceedings.
- He
further claimed that he had been denied an opportunity to properly
defend his position before the domestic courts during the proceedings
concerning the cancellation of his registration. The Court of Appeal
had held its hearing during a weekend, within only one day of
receiving the ConEC’s request. As a result, the applicant had
been deprived of the opportunity to prepare his defence and to gather
information undermining the credibility of the questionable evidence
produced against him. For example, he had not been able to obtain
information from the relevant housing authorities about the
authenticity of the residential addresses provided by the alleged
witnesses, because those authorities were closed on Saturday.
Subsequently, after the applicant had gathered such information and
submitted it together with his cassation appeal, the Supreme Court
refused to take into consideration the new evidence submitted by him,
wrongfully stating that it was not competent to determine the factual
circumstances.
2. The Court’s assessment
- The
Court has established that Article 3 of Protocol No. 1 guarantees
individual rights, including the rights to vote and to stand for
election. Important though these rights are, they are not, however,
absolute. Since Article 3 recognises them without setting them
out in express terms, let alone defining them, there is room for
“implied limitations”, and contracting States have a wide
margin of appreciation in this sphere. In their internal legal orders
they may make the rights to vote and to stand for election subject to
conditions which are not in principle precluded under Article 3 (see
Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§
51-52, Series A no. 113; 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).
- While
the Contracting States enjoy a wide margin of appreciation in
imposing conditions on the right to vote and to stand for election,
it is for the Court to determine in the last resort whether the
requirements of Article 3 of Protocol No. 1 have been complied
with; 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 (see Mathieu-Mohin and Clerfayt,
cited above, § 52; Gitonas and Others v. Greece, 1 July
1997, § 39, Reports of Judgments and Decisions
1997-IV; and Yumak and Sadak v. Turkey [GC], no.
10226/03, § 109 (iii), 8 July 2008).
- 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 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, and the Court has consistently stressed
the need to avoid arbitrary decisions and abuse of power in various
electoral contexts and has emphasised that the relevant procedures
for such decisions must be characterised by procedural fairness and
legal certainty (see, mutatis mutandis, Kovach v. Ukraine,
no. 39424/02, § 55, ECHR 2008-...; Namat Aliyev v.
Azerbaijan, no. 18705/06, § 72, 8 April 2010; and Petkov
and Others v. Bulgaria, nos. 77568/01, 178/02 and 505/02, § 61,
ECHR 2009 ..., with further references).
- The
Court notes 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. Given that Article 3 of Protocol No. 1 does not contain a
list of “legitimate aims” capable of justifying
restrictions on the exercise of the rights it guarantees and does not
refer to those enumerated in Articles 8 to 11 of the Convention, the
Contracting States are free to rely on an aim not mentioned in those
Articles, provided that it is compatible with the principle of the
rule of law and the general objectives of the Convention (see, for
example, Zdanoka v. Latvia [GC], no. 58278/00, § 115,
ECHR 2006 IV). 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.
- The
Court reiterates that its competence to verify compliance with
domestic law is limited and that it is not its task to take the place
of the domestic courts in such issues as assessment of evidence or
interpretation of the domestic law. Nevertheless, for the purposes of
supervision of the compatibility of the interference with the
requirements of Article 3 of Protocol No. 1, 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 (see, mutatis mutandis,
Melnychenko v. Ukraine, no. 17707/02, § 60, ECHR
2004 X ).
- In
this respect, the Court notes that a finding that a candidate has
engaged in unfair or illegal campaigning methods could entail serious
consequences for the candidate concerned, in that he or she could be
disqualified from running for the election. As the Convention
guarantees the effective exercise of individual electoral rights (see
paragraph 42 above), the Court considers 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.
- In
the present case, 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
written statements by random residents of the area and oral
statements by two police officers. No other evidence existed.
However, in the Court’s opinion, it is unlikely that someone
could commission, sponsor or carry out large-scale urban development
works in public areas, in plain view of the public and with the aim
of “buying” votes, without the existence of strong
material evidence, including at least some of the following: 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 or his staff
being present at the construction site or issuing instructions
concerning the works to be carried out, statements by witnesses who
have personally heard the applicant or his staff informing the voters
that the works were carried out by the applicant and asking them to
support the applicant in the elections, and so on.
- The
Court notes in this regard that, instead of direct material evidence
in support of the applicant’s alleged misconduct, the domestic
authorities’ findings were based on rather scant evidence
consisting of very brief statements by two police officers and
several random persons. Moreover, in any event, the Court considers,
on the basis of the reasons specified below, that even the existing
evidence was not devoid of serious shortcomings, and that, despite
the applicant’s objections in this regard, the procedure for
finding the applicant responsible for electoral misconduct did not
afford him sufficient guarantees against arbitrariness.
- At
the outset, the Court notes 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. The
Court finds reasonable the applicant’s suspicions concerning
the fact that the statements of “residents” used against
him were addressed to the police rather than the electoral
authorities and that, moreover, these statements, in a manner rather
unusual and contradictory to the purpose for which they were
ultimately used, were not worded as complaint letters but as letters
of praise. It is also unusual that anyone who did not personally know
the applicant but who nevertheless wanted to commend him for his
alleged charitable activities for the benefit of the community
should, of his or her own accord, express his or her gratitude to the
applicant by means of a letter addressed to the police, and even more
so considering that several people did so on the same day, allegedly
independently of each other.
- Moreover,
the Court notes that in the subsequent proceedings concerning the
applicant’s disqualification none of those “residents”
testified in a manner consistent with their written statements to the
police. In particular, of the six residents heard by the courts,
three persons stated that they had no prior knowledge as to who had
commissioned the renovation works. As to why they had written
statements implicating the applicant, they explained that they had
been requested to write them by police officer F. Zamanov, that
they had first heard about the applicant’s alleged involvement
in the renovation works from this police officer, and that they had
not been informed that these statements would be used against the
applicant later (see paragraph 19 above). The other three residents
noted that they had no knowledge whatsoever about the applicant’s
involvement in the renovation works. Two of them even stated that
these works had been carried out by the residents themselves at their
own expense (see paragraph 20 above). Moreover, after the
hearing in the Court of Appeal, three of the 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 (see paragraph 24 above).
- Two
other persons, who had also submitted written statements to the
police and had claimed to be “residents” of the area in
question, were never heard by the courts at any stage. As became
apparent in the course of the proceedings from the information
gathered by the applicant, these two persons were not residents of
the area in question and could not be otherwise identified or
located.
- Lastly,
the Court notes that in the course of the judicial proceedings only
two witnesses, namely police officers F. Zamanov and R. Samadov,
positively identified the applicant as the person who had allegedly
commissioned the renovation works in question. However, their
statements appeared to be hearsay evidence, as the police officers
did not claim to have any first-hand knowledge of the matter and
stated that they had “heard” this information from some
local residents whom they did not identify. In essence, the police
officers’ statements, taken alone and uncorroborated by other
evidence, appear to have been nothing more than a rumour; in such
circumstances, the Court is concerned that these statements were not
subjected to any degree of scrutiny by the domestic courts.
- It
therefore appears that, with the exception of the two police
officers, none of the witnesses testified against the applicant
during the judicial hearings. In view of the above, the Court
takes seriously the applicant’s claims as to the highly
questionable nature of the actual evidence produced, and the lack of
consistent and reliable proof of his alleged misconduct.
- However,
despite the seriousness of the applicant’s objections, neither
the electoral commission, nor the domestic courts effectively
examined them.
- In
particular, it appears that the ConEC took the decision to request
the applicant’s disqualification without any independent
hearing or assessment of the factual circumstances, and without
informing the applicant in a timely manner. It is therefore apparent
that no procedural safeguards against arbitrariness were afforded to
the applicant at the ConEC level. Moreover, according to the
documents submitted by the Government, the relevant ConEC meeting was
held on 29 October 2005, while the official cancellation request made
by the ConEC was dated 28 October 2005, one day earlier.
This suggests that the formal decision to request cancellation of the
applicant’s candidacy was actually taken post facto, one
day after the request had been sent to the Court of Appeal. This
discrepancy in the ConEC paperwork was unexplained by the Government.
This type of irregularity, in the absence of any reasonable
explanation, constitutes another indication that there was a lack of
any genuine assessment of the matter at the ConEC level.
- The
Court of Appeal examined the case the day after receiving the ConEC
request, on a Saturday at 11 a.m. In such circumstances, the
applicant was not afforded much time to examine the material in the
case file and to prepare arguments in his defence. The Court
reiterates that considerations of expediency and the necessity for
tight time-limits designed to avoid delaying the electoral process,
although often justified, may nevertheless not serve as a pretext to
undermine the effectiveness of electoral procedures (see, mutatis
mutandis, Namat Aliyev, cited above, § 90)
or to deprive the persons concerned by those procedures of the
opportunity to effectively contest any accusations of electoral
misconduct made against them. 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.
- Moreover,
it appears that in its judgment the Court of Appeal misrepresented
the statements of certain witnesses. In particular, according to the
record of the court hearing, witnesses G.N. and R.I. stated that they
had not known who had commissioned the renovation works but had been
“informed” for the first time about that alleged fact by
police officer F. Zamanov who had then asked them to write
“thank-you notes” (see paragraph 19 above); however,
the Court of Appeal’s judgment stated that these witnesses had
unequivocally confirmed the police officers’ allegations
against the applicant (see paragraph 21 above). Furthermore, despite
the apparent lack of evidence proving the alleged misconduct
(see paragraph 47 above), the court failed to seek any further
clarifications or information concerning the financing of the
renovation works, any material or documentary proof of the
applicant’s involvement, or any proof of intent to unlawfully
influence voter choice. Moreover, while the oral statements of most
of the witnesses heard appeared to be favourable to the applicant,
the Court of Appeal failed to explain why it had discarded these
statements and instead found the two police officers’
statements and the written material presented by them sufficient to
prove the alleged misconduct. In fact, the court failed to provide
any reasoning for its decision, as the text of its judgment jumped
immediately to the conclusion after a brief summary of the oral
submissions and citation of the relevant provisions of the Electoral
Code, notably lacking any assessment of the probative value of the
evidence presented or the legal arguments. In the light of the above,
the Court cannot but conclude that the proceedings before the Court
of Appeal did not afford the applicant the necessary procedural
safeguards, and that its decision was unsupported by sufficient
factual evidence and was not sufficiently reasoned.
- As
to the procedure before the Supreme Court, the Court notes that,
before the hearing of his appeal, the applicant was able to procure
additional documents in support of his position. In particular, he
had obtained statements from the local housing authority that two of
the authors of the original statements to the police (S.A. and T.T.)
had not been residents of the area in question and could not be
identified. Based on this, he argued that the evidence against him
had been “fabricated” and that the Court of Appeal had
inexplicably failed to seek the attendance of these persons or to
seek an explanation from the police as to who they were. Furthermore,
he submitted notarised affidavits by three of the other authors of
the original statements to the police, in which they retracted their
original statements and described the circumstances in which they
claimed they had been tricked by the police into making them. In the
Court’s opinion, the above information discloses the appearance
of an incomprehensive review of evidence by the lower court and
supports the applicant’s argument that, in so far as he was
unable to procure and present the above information at the Court of
Appeal hearing because of the unreasonable time-constraints created
by that court, he was not afforded sufficient safeguards against
arbitrariness. Accordingly, these submissions concerned not only the
allegedly wrong assessment of the facts by the lower court, but also,
quite importantly, the procedural shortcomings having led to such
wrong assessment. Nevertheless, despite having competence to review
procedural defects committed by lower courts, the Supreme Court
refused to take these submissions into account, relying irrelevantly
and formalistically on its lack of competence to deal with questions
of fact. In essence, the Supreme Court ignored all of the applicant’s
points of appeal and failed to detect and put right any of the
procedural defects committed by the lower court.
- In
view of the above, the Court concludes that the interference with the
applicant’s electoral rights fell short of the standards
required by Article 3 of Protocol No. 1. In particular, 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, and the
domestic authorities’ decisions were unreasoned and arbitrary.
- There
has accordingly been a violation of Article 3 of Protocol No. 1
to the Convention.
II. 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, in its relevant part, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Court notes that the proceedings in question involved the
determination of the applicant’s right to stand as a candidate
in parliamentary elections. The dispute in issue therefore concerned
only the applicant’s political rights and did not have any
bearing on his “civil rights and obligations” within the
meaning of Article 6 § 1 of the Convention (see Pierre-Bloch
v. France, 21 October 1997, § 50, Reports 1997-VI;
Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000-I; Zdanoka
v. Latvia (dec.), no. 58278/00, 6 March 2003; and Mutalibov
v. Azerbaijan (dec.), no. 31799/03, 19 February 2004).
Accordingly, this Convention provision does not apply to the
proceedings complained of.
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article
35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
- The
applicant claimed 200,000 Azerbaijani manats (AZN) in respect of
pecuniary damage, including AZN 75,000 for the expenses borne during
the electoral campaign and AZN 125,000 for loss of salary and various
social allowances he would have received if elected as member of
parliament.
- The
Government argued that there was no causal link between the alleged
violation and the damages claimed. They further argued that the
applicant had failed to support his claims with relevant documents.
- The
Court notes that the present application was about the applicant’s
right to stand for election. It cannot be assumed that, had the
applicant’s right not been infringed, he would necessarily have
won the election in his constituency and become a member of
parliament. Therefore, it cannot be speculated that the expenditure
on his electoral campaign was a pecuniary loss or that the applicant
would have received a salary and social allowances as a
parliamentarian (see, mutatis mutandis, The Georgian Labour
Party v. Georgia, no. 9103/04, § 150, 8 July 2008, and
Seyidzade v. Azerbaijan, no. 37700/05, § 50, 3
December 2009). As no causal link has been established between the
alleged pecuniary loss and the violation found, the Court dismisses
the applicant’s claim under this head.
2. Non-pecuniary damage
- The
applicant claimed AZN 500,000 in respect of non-pecuniary damage
caused by the infringement of his electoral rights.
- The
Government argued that the amount claimed was excessive and requested
the Court to award a reasonable amount on an equitable basis.
- 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 did not submit a claim in respect of costs and expenses in
the manner required by Rule 60 of the Rules of Court. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 3 of
Protocol No. 1 to 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
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,500
(seven thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Azerbaijani manats at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
