CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 octobre 2013

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They are represented before the Court by various lawyers practising in Azerbaijan (see Appendix). The facts of the cases, as submitted by the applicants, are similar to those of the case of Aslan Ismayilov v. Azerbaijan (no. 20411/11, communicated on 30 August 2013). They may be briefly summarised as follows. The applicants were either self-nominated or nominated by various opposition-oriented political parties to stand as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single-mandate electoral constituencies (see Appendix). According to official election results, each applicant lost the election in his or her respective constituency. On or after election day, each applicant lodged a complaint either directly with the Central Electoral Commission (“the CEC”), or first with the respective Constituency Electoral Commission (“the ConEC”) and subsequently with the CEC after the respective ConEC dismissed their complaints. They complained about various irregularities and breaches of electoral law that had taken place in various polling stations in their respective electoral constituencies before or during election day, and sought invalidation of the election results in their respective constituencies owing to those irregularities. In particular, they complained of various instances of all or some of the following irregularities: “carousel” voting, ballot-stuffing, obstruction and/or intimidation of their observers and representatives in polling stations, campaigning by members of polling station commissions (PECs) in favour of pro-Government candidates, interference in the voting process by local public officials, breach of procedures for inking voters’ fingers, voting by people not registered as voters in the constituency, multiple voting by same individuals, breach of vote counting procedures, false reporting of inflated voter turnout figures in PEC results records, inconsistencies in election results recorded in the PEC results records submitted to the ConEC and those recorded in copies of the same records given to the candidates, and so on. In support of their complaints, each applicant submitted a number of affidavits signed by their observers and representatives in various polling stations, and in some cases a number of other documents, video recordings and photographs documenting the alleged irregularities. On various dates (see Appendix), the relevant ConECs and the CEC dismissed the applicants’ complaints in full or in part, as unsubstantiated. The applicants’ participation in the examination of their complaints by the commissions was not ensured (except in applications nos. 36209/11 and 36230/11, where the applicants participated in the relevant CEC hearing). The applicants lodged appeals against the respective CEC decisions with the Baku Court of Appeal, reiterating their complaints about the election irregularities, further complaining that the examination of their complaints by the CEC had been ineffective, and requesting the court to quash the respective CEC decision and to invalidate the election results in their respective constituencies. In the meantime, on 22 November 2010 the CEC issued a final record on the general election results, confirming the final results of elections in all constituencies. In accordance with electoral law, this results record was sent to the Constitutional Court for approval. On various dates (see Appendix), the Baku Court of Appeal dismissed the applicants’ appeals in all cases, largely copying the reasoning of the respective CEC decisions. The applicants lodged cassation appeals with the Supreme Court, reiterating their complaints made before the electoral commissions and the Baku Court of Appeal, and arguing that the examination of their complaints and appeals by the commissions and by the Baku Court of Appeal had been ineffective. In the meantime, on 29 November 2010 the Plenum of the Constitutional Court examined the CEC’s final results record of 22 November 2010 and approved the election results in all constituencies. This decision was final and entered into force immediately. On various dates (see Appendix), but in each case after 29 November 2010, the Supreme Court dismissed the applicants’ appeals, largely reiterating the Baku Court of Appeal’s reasoning. Also, in all cases except applications nos. 29615/11, 31944/11 and 36821/11, the Supreme Court also noted in its respective decisions that, on 29 November 2010, the Constitutional Court had reviewed and approved the election results. As the Constitutional Court’s decision was the final act concluding the entire election process and, as such, could not be quashed, amended or reinterpreted by any other authority or court, the Supreme Court found that in any event it was no longer possible to grant the applicants’ appeals challenging the election results in their constituencies and seeking their invalidation. COMPLAINTS 1.     The applicants complain under Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention that there had been a number breaches of the electoral law and other irregularities before and during election day, which had infringed their right to stand as a candidate in free elections, and that the domestic authorities, including the electoral commissions and courts, had failed to duly and effectively examine their complaints and to investigate such irregularities. 2.     Relying on either Article 3 of Protocol No. 1 of the Convention or Article 13 of the Convention, or both, the applicants complain that they were deprived of their right to an effective remedy before the Supreme Court because the Constitutional Court had approved the country-wide election results despite the fact that their individual appeals, challenging the election results in their respective constituencies and lodged within the time-limits specified by law, were still pending before the Supreme Court. 3.     The applicants in applications nos. 29604/11, 31944/11, 36070/11, 36209/11 and 36230/11 complain under Articles 13 and 14 of the Convention, in conjunction with the complaint under Article 3 of Protocol No. 1 to the Convention, that, owing to the current method of composition of electoral commissions at all levels, the electoral commissions were not independent and impartial and, as a result, all their decisions heavily favoured the pro-Government candidates. 4.     The applicants in applications nos. 20443/11, 24070/11, 29604/11, 29615/11, 31944/11, 36070/11, 36209/11, 36227/11, 36230/11 also complain under Article 14 of the Convention, in conjunction with the above complaints, that candidates nominated by opposition parties and independent candidates critical of the Government, like themselves, were discriminated against, by various means, by all State executive authorities, electoral commissions, courts and Government-controlled media throughout the entire electoral process.     COMMON QUESTIONS TO THE PARTIES 1.     Has there been a breach of the applicants’ right under Article 3 of Protocol No. 1 to participate in free elections which ensure the free expression of the opinion of the people in the choice of legislature? Did the process of examination by the domestic authorities of the applicants’ complaints offer sufficient safeguards against arbitrariness? Did such examination comply with the requirements of Article 3 of Protocol No.   1? Moreover, given that the Constitutional Court had approved the results of elections while the applicants’ individual appeals before the Supreme Court were pending, was the applicants’ right to challenge the election results before the Supreme Court, as a final remedy guaranteed by domestic electoral law, effective in practice?   2.     Did the applicants have at their disposal an effective domestic remedy before the electoral commissions and domestic courts (and, in particular, the Supreme Court) for their Convention complaints, as required by Article 13 of the Convention?   CASE SPECIFIC QUESTIONS 1.     Applications nos. 29604/11, 31944/11, 36070/11, 36209/11 and 36230/11: What were the rules of composition of electoral commissions for the parliamentary elections of 7 November 2010? Were they compatible with the principles enshrined in Article 3 of Protocol No. 1? Did the method of composition of electoral commissions affect the applicants’ rights under Articles 13 and 14 of the Convention?   2.     Applications nos. 20443/11, 24070/11, 29604/11, 29615/11, 31944/11, 36070/11, 36209/11, 36227/11, 36230/11: Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of his political affiliation, contrary to Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1?         APPENDIX No. Application no. Lodged on Applicant name date of birth place of residence Represented by Electoral constituency and the nominating body ConEC decision(s) CEC decision Domestic courts’ decisions   20443/11 17/03/2011 Tofig YAGUBLU 1961 Baku   Akif ALIZADE Sabunchu First Electoral Constituency No. 26, nominated by the coalition of the Popular Front Party (PFPA) and Müsavat Party (PFPA-Müsavat coalition) 7/11/2010 and 10/11/2010 21/11/2010 Baku Court of Appeal judgment of 25/11/2010; Supreme Court decision of 02/12/2010   24070/11 08/04/2011 Sardar MAMMADOV 1957 Baku Fuad AĞAYEV Nasimi First Electoral Constituency No. 21, nominated by the Karabakh Election Bloc 11/11/2010 20/11/2010 Baku Court of Appeal judgment of 24/11/2010; Supreme Court decision of 01/12/2010   29604/11 02/05/2011 Bakhtiyar HAJIYEV 1982 Ganja Hafiz HASANOV Yasamal Third Electoral Constituency No. 17, self-nominated N/A 20/11/2010 Baku Court of Appeal judgment of 24/11/2010; Supreme Court decision of 01/12/2010   29615/11 05/05/2011 Ilgar HUSEYNLI 1967 Masazir, Absheron District   Hafiz HASANOV Imishli Electoral Constituency No. 79, self-nominated N/A 20/11/2010 Baku Court of Appeal judgment of 24/11/2010; Supreme Court decision of 01/12/2010   31944/11 13/05/2011 Nariman YAHYAYEV 1952 Mingechevir Hafiz HASANOV Mingechevir Electoral Constituency No. 47, nominated by the PFPA- Müsavat coalition According to the applicant, complaint not examined by ConEC 19/11/2010 Baku Court of Appeal judgment of 23/11/2010; Supreme Court decision of 30/11/2010   36070/11 19/05/2011 Gozal BAYRAMOVA 1962 Baku Hafiz HASANOV Narimanov First Electoral Constituency No. 19, nominated by the PFPA- Müsavat coalition According to the applicant, complaint not examined by ConEC 18/11/2010 Baku Court of Appeal judgment of 24/11/2010; Supreme Court decision of 01/12/2010   36209/11 19/05/2011 Namat ALIYEV 1966 Baku   Hafiz HASANOV Barda City Electoral Constituency No. 93, nominated by the PFPA- Müsavat coalition N/A 21/11/2010 Baku Court of Appeal judgment of 24/11/2010; Supreme Court decision of 30/11/2010   36227/11 26/05/2011 Salman IMANLI 1955 Ganja   Hafiz HASANOV Kapaz Secon Electoral Constituency No. 40, nominated by the Karabakh Election Bloc N/A 21/11/2010 Baku Court of Appeal judgment of 25/11/2010; Supreme Court decision of 01/12/2010   36230/11 26/05/2011 Sahib KARIMOV 1974 Bideyiz, Shaki District Hafiz HASANOV Shaki City Electoral Constituency No. 113, nominated by the PFPA- Müsavat coalition 12/11/2010 21/11/2010 Baku Court of Appeal judgment of 24/11/2010; Supreme Court decision of 30/11/2010   36821/11 27/05/2011 Arzu SAMADBAYLI 1962 Baku Intigam ALIYEV Binagadi First Electoral Constituency No. 8, nominated by the PFPA- Müsavat coalition 13/11/2010 20/11/2010 Baku Court of Appeal judgment of 23/11/2010; Supreme Court decision of 30/11/2010   36898/11 31/05/2011 Hasan KARIMOV 1954 Baku Intigam ALIYEV Sabail Electoral Constituency No. 29, nominated by the PFPA- Müsavat coalition 10/11/2010 20/11/2010 Baku Court of Appeal judgment of 23/11/2010; Supreme Court decision of 01/12/2010