Communicated on 26 August 2014
FIRST SECTION
Application no. 28508/11
Ikhtiyar Alish Oglu ABDALOV
against Azerbaijan
lodged on 26 April 2011
STATEMENT OF FACTS
The applicant, Mr Ikhtiyar Abdalov, is an Azerbaijani national, who was born in 1964 and lives in Baku. He is represented before the Court by Mr K. Bagirov, a lawyer practising in Azerbaijan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was nominated by the Karabakh Election Bloc to stand as one of its candidates in the parliamentary elections of 7 November 2010 from the single-mandate Yasamal First Electoral Constituency No. 15. On 17 September 2010 the Constituency Electoral Commission (“the ConEC”) preliminarily accepted his nomination as a candidate and issued him with official signature sheets in order to collect a minimum of 450 voter signatures in support of the nomination, as required by law. Under the Electoral Code, the ConEC would decide whether to register the applicant as a candidate following the submission of all required registration documents, including the filled signature sheets.
The applicant collected 550 voter signatures on eleven signature sheets and submitted them to the ConEC, together with other relevant documents, in a timely manner.
On 2 October 2010 the ConEC issued a decision titled “On refusal to accept the nomination of [the applicant] ...”. The ConEC found that, out of the 550 signatures submitted by the applicant, 159 were invalid for various reasons (including 143 signatures found to be “false”, and the remaining 16 rendered invalid due to various technical errors) and that, therefore, the total number of valid signatures was below the minimum of 450 required by law.
The applicant lodged an appeal against this decision with the Central Electoral Commission (“the CEC”).
By a decision of 13 October 2010, the CEC rejected the applicant’s appeal, having conducted its own examination of the signature lists and having found that 187 signatures were invalid.
The applicant appealed against the CEC decision.
By a judgment of 19 October 2010, the Baku Court of Appeal rejected the applicant’s appeal, agreeing with the CEC’s reasoning and finding no reasons to doubt its findings.
The applicant lodged a further appeal with the Supreme Court.
On 28 October 2010 the Supreme Court granted the applicant’s appeal and quashed the Baku Court of Appeal’s judgment. The Supreme Court found that, after the applicant had submitted the relevant registration documents, the ConEC had been required under Article 60.1 of the Electoral Code to either formally register the applicant as a candidate or refuse registration (see the relevant domestic law below). However, in the present case, the ConEC had instead taken a decision “on refusal to accept nomination”, which was a procedurally incorrect and unlawful decision (the applicant’s nomination having been already accepted at that stage). The court held that, in fact, in the present case there was no formal ConEC decision on the applicant’s registration taken under Article 60.1 of the Electoral Code within the time-limits prescribed by law. The Supreme Court remitted the case to the Baku Court of Appeal.
By a judgment of 2 November 2010 the Baku Court of Appeal ruled in the applicant’s favour. The Court of Appeal’s judgment was silent as to the Supreme Court’s legal reasoning as to the unlawfulness of the ConEC decision of 2 October 2010 on procedural grounds. Instead, the Baku Court of Appeal appeared to proceed on assumption that the ConEC decision constituted a formal refusal to register the applicant, and ordered a new handwriting expert analysis of the applicant’s signature sheets. The expert report found that a total of only 61 (and not 187, as had been found earlier) signatures out of 550 were invalid. Based on this report, the Baku Court of Appeal found that the total number of the valid signatures exceed 450 and that, therefore, the applicant should have been registered as a candidate. The court ordered the CEC to register the applicant.
On 3 November the CEC registered the applicant as a candidate. It issued the relevant registration card to him one day later, on 4 November 2010.
The last full day of the official pre-election campaigning period was effectively 5 November 2010, owing to the statutory ban on any campaigning during the 24-hour blackout period before voting day.
On 5 November 2010 the applicant sent a telegram to the CEC, requesting to postpone the elections in his constituency so that he could have time to conduct his pre-election campaign on equal conditions with other candidates.
No reply was received by the applicant before 7 November 2010, the voting day. The applicant received very few votes and lost the election.
The CEC replied by a letter of 8 November 2010, one day after the voting day. The CEC noted that Article 149 of the Electoral Code provided for specific cases when elections could be postponed and that the applicant’s situation did not constitute one of them.
The applicant lodged a formal complaint with the CEC, asking for invalidation of the election results and for a repeat election. He argued that the elections were unfair owing to the unlawful delay in registration of his candidacy, as a result of which he had been unable to have sufficient time for pre-election campaigning and to participate in the elections on equal conditions with the other candidates.
On 20 November 2010 the CEC rejected the applicant’s complaint, noting that the legislation did not provide for postponement of elections in the event of late registration of one of the candidates.
The applicant appealed.
On 25 November 2010 the Baku Court of Appeal dismissed the applicant’s appeal. It noted that the Election Code did not provide for a possibility of postponement of elections owing to late registration of a candidate. It also noted that the applicant had in fact been able to campaign after his candidacy had been registered, that he had appeared on television once, and that his election campaign materials had been printed in form of booklets and also published in newspapers. The court concluded that, from the moment of his registration, the applicant had been able to campaign and participate in the election on equal conditions with the other candidates.
On 30 November 2010 the Supreme Court dismissed the applicant’s further appeal, reiterating the Baku Court of Appeal’s reasoning.
B. Relevant domestic law
Article 54 of the Electoral Code regulates nomination of candidates by political parties and coalitions of political parties. In accordance with Article 54.9 of the Electoral Code, following submission by a political party of documents nominating a candidate, the constituency electoral commission must deliver a decision to accept or refuse to accept the nomination within five days.
Following a decision to accept the nomination made in accordance with Article 54.9, the nominated person is given time to collect voter signatures in support of his nomination (Article 56.1 of the Electoral Code).
Within a specified time period, the nominee submits the collected signatures, together with other required documents, for formal registration as a candidate (Article 58 of the Electoral Code).
In accordance with Article 60.1 of the Electoral Code, within seven days from the day of submission of the relevant registration documents and signature sheets, the constituency electoral commission takes a decision to formally register or to refuse to register the nominee as a candidate.
COMPLAINTS
1. The applicant complains under Article 3 of Protocol No. 1 to the Convention that, owing to the arbitrary decision refusing to register him as a candidate and the subsequent delayed registration following a number of appeals, he was unable to participate in the parliamentary elections under equal conditions with other candidates, because he had only one day for conducting his pre-election campaign.
2. Relying on Article 13 of the Convention in conjunction with the above complaint, the applicant complains that the domestic proceedings were ineffective.
QUESTIONS TO THE PARTIES
1. Has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to stand as a candidate in free elections which ensure the free expression of the opinion of the people in the choice of legislature? Did the procedure for determination of the candidate’s eligibility contain sufficient safeguards to prevent arbitrary decisions, preventing arbitrary or unreasonable delays in registration? Did the delay in registration of the applicant’s candidacy in the present case result in the infringement of his right to stand for election in equal and fair conditions?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of Protocol No. 1, as required by Article 13 of the Convention?
3. The parties are requested to submit copies of all the complaints and appeals submitted by the applicant to the electoral commissions and domestic courts, as well as any other official documents relating to the domestic proceedings which are not already available in the file.
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