CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 8 avril 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sBB9EE52A { font-family:Arial } .sA36B60A1 { font-family:Arial; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } 292 08.04.2010   Press release issued by the Registrar   Chamber judgment [1]   Namat Aliyev v. Azerbaijan (application no. 18705/06)   RIGHT TO FREE ELECTIONS BREACHED BY AZERBAIJANI AUTHORITIES   Unanimously   Violation of Article 3 of Protocol No 1 (right to free elections) to the European Convention on Human Rights     Principal facts   The applicant, Namat Faiz oglu Aliyev, is an an Azerbaijani national who was born in 1966 and lives in Baku. He stood for the elections to the Milli Majlis (Parliament) of 6   November   2005 as a candidate of the opposition bloc Azadliq. He was registered as a candidate for the single-mandate electoral constituency no. 93. According to the Constituency Electoral Commission (“the ConEC”) protocol drawn up after election day, one of the applicant’s opponents, Z.O., a member of the Motherland Party, obtained the highest number of votes cast in constituency no. 93. Specifically, according to the ConEC protocol, Z.O. received 41.25%, the applicant received 14.19%, and a third candidate received   12.92%.   On 7 and 8 November 2005 the applicant submitted complaints before the ConEC and the Central Electoral Commission (“CEC”) concerning alleged irregularities during the election day. He alleged in particular unlawful interference in the election process by local executive authorities, undue influence on voter choice, several instances of ballot-box stuffing, harassment of observers, irregularities in electoral rolls and obvious discrepancies in electoral protocols showing a possible failure to account for as many as thousands of “unused” blank ballots. In support of his claims, the applicant submitted to the CEC originals of more than 30 affidavits ( akt ) of election observers, audio tapes and other evidence documenting specific instances of irregularities.   On 23 November 2005 the ConEC rejected the applicant’s complaint as unsubstantiated without further elaboration. On the same day, the CEC issued its final protocol approving the overall election results in the country.   On 25 November 2005 the applicant applied before the Court of Appeal, asking it to invalidate the CEC’s final protocol in the part relating to the election results in his electoral constituency. He claimed that due to the irregularities occurred on election day, it was not possible to determine the true opinion of the voters in his constituency. The Court of Appeal dismissed his claims as unsubstantiated. It did not consider the photocopies of the affidavits as admissible evidence, noting that in accordance with domestic law either the originals or notarised copies of those affidavits should have been submitted.   On 30 November 2005 the applicant lodged a further appeal with the Supreme Court, reiterating his claims. He also noted that he had submitted the originals of the documentary evidence to the CEC on 7   November 2005. The Supreme Court dismissed his appeal on the same grounds as the Court of Appeal. As to the originals of the documentary evidence allegedly submitted to the CEC, the Supreme Court noted that the applicant had failed to submit any evidence proving that he had ever complained before the CEC.   On the same day, 1 December 2005, the Constitutional Court confirmed the election results in the majority of the electoral constituencies, including Barda City Electoral Constituency no.   93.   In February 2006, the OSCE/ODIHR published a report on their observation of the parliamentary elections signalling numerous instances of malfunctioning during the elections which undermined their fairness.     Complaints, procedure and composition of the Court   Relying in particular on Article 3 of Protocol No. 1 to the Convention, the applicant complained that, in the electoral constituency where he stood as a candidate in the parliamentary elections, there had been a number of serious irregularities and breaches of electoral law which had made it impossible to determine the true opinion of voters and thus had infringed his right to stand as a candidate in free elections. He also alleged that the domestic authorities, including the electoral commissions and courts, had failed to duly examine his complaints and to investigate his allegations concerning the mentioned irregularities.   The application was lodged with the European Court of Human Rights on 20   April   2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President , Nina Vajić (Croatia), Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), Judges , and Soren Nielsen, Section Registrar .     Decision of the Court   The Court noted that what was at stake in the present case was not the applicant’s right to win the election in his constituency, but his right to stand freely and effectively for it. The applicant was entitled under Article   3 of Protocol   No.   1 to stand for election in fair and democratic conditions, regardless of whether he ultimately won or lost.   The Court acknowledged the seriousness of the claims made by the applicant before the domestic authorities. The alleged irregularities, if duly confirmed to have taken place, had been indeed potentially capable of thwarting the democratic nature of the elections. The applicant had presented relevant evidence consisting mainly of affidavits signed by official observers giving fact-specific accounts of the events as witnessed by them. In addition, the Final Report of the OSCE/ODIHR Election Observation Mission concerning the elections of 6   November   2005 had indirectly corroborated the applicant’s claims.   The Court then noted that where complaints of election irregularities had been addressed at the domestic level, the Court’s examination had to be limited to verifying whether any arbitrariness could be detected in the domestic court procedure and decisions. The Azerbaijani law had provided for a system of examination of individual election-related complaints and appeals, consisting of electoral commissions of different levels, whose decisions could be appealed subsequently to the Court of Appeal and further to the Supreme Court. The applicant had made use of that system.   The Court noted in that respect that the ConEC contended itself with requesting written explanations from the relevant electoral commissions chairpersons and members. Given that confirming the applicant’s allegations could have potentially entailed those officials’s responsibility, it was not surprising that all of them had simply denied any wrongdoing using the most general wording. The ConEC appeared to have relied exclusively on the statements of the electoral officials in deciding to dismiss the applicant’s complaint, without explaining why those statements had been considered more reliable than the much more detailed and fact ‑ specific evidence presented by him. Likewise, the ConEC had given no reasons in support of its finding that the applicant’s claims had been “unsubstantiated”. Also, no detailed assessment of the substance of the applicant’s allegations had been even attempted and no genuine effort had been made to determine the validity of his claims.   As for the applicant’s complaint lodged directly with the CEC, the Court noted that he had submitted documentary evidence proving that his complaint had been received by the CEC on 8 November 2005. The CEC had apparently ignored his complaint. The Court referred once again to the OSCE/ODIHR report, which stated that in the vast majority of cases the CEC had merely transmitted individual complaints to the relevant ConECs without examining them, and that it had not addressed most of the complaints it received on and after election day.   The applicant’s subsequent appeals lodged with the Court of Appeal and the Supreme Court had not been addressed adequately either. In particular, both courts had relied on extremely formalistic reasons to avoid examining the substance of his complaints. The Court, having recalled the Venice Commission’s Code of Good Practices in Electoral Matters which cautioned against excessive formalism in the examination of election-related appeals, found that such a rigid and overly formalistic approach had not been justified under the Convention. What had been at stake in those proceedings had not been only the alleged infringement of the applicant’s individual rights but also, on a more general level, the State’s   compliance with its duty to hold free and fair elections. Therefore, the domestic courts should have reacted by taking reasonable steps to investigate the alleged irregularities without imposing unreasonable and excessively strict procedural barriers on the applicant. Further, the applicant’s allegations had also referred to apparent inconsistencies in several electoral protocols disclosing potential large-scale tampering with ballots. The domestic courts should have requested the electoral commissions to submit those protocols to them for an independent examination, something which they failed to do.   In view of the above considerations, the Court concluded that the conduct of the electoral commissions and courts and their respective decisions had revealed a lack of any genuine concern for the protection of the applicant’s right to stand for election.   There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.   Under Article 41 (just satisfaction), the Court held that Azerbaijan had to pay to the applicant   7,500   euros (EUR) for non-pecuniary damage and EUR   1,600 in respect of costs and expenses.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) or Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.