Abil v. Azerbaijan (no. 2)

Information Note on the Court’s case-law 235

December 2019

Abil v. Azerbaijan (no. 2) - 8513/11

Judgment 5.12.2019 [Section V]

Article 3 of Protocol No. 1

Stand for election

Applicant’s disqualification from parliamentary elections for early campaigning and vote buying, resulting from deficient procedure and inadequate assessment of evidence: violation

Facts – The applicant was nominated by a party to stand as one of its candidates in the parliamentary elections of November 2010. While the applicant’s registration was pending, on 4 and 5 October 2010 several posters containing the applicant’s photograph, biography and a text purportedly describing his electoral platform were hung on walls of various buildings of two towns. The official campaigning period was scheduled to start on 15 October 2010 and, under domestic law, it was prohibited to campaign before that date. The applicant’s registration as a candidate for the parliamentary elections was cancelled. The disqualification proceedings were the result of two preceding sets of proceedings initiated at the Constituency Electoral Commission (“the ConEC”) level. The first set of proceedings concerned the incident in the first town, which resulted in a formal warning being issued by the ConEC to the applicant for early campaigning. The second set concerned “repeated” early campaigning, as well as vote buying, in the second town, which resulted in the applicant being sentenced to an administrative fine by the district court. The Court of Appeal came to cancel the applicant’s candidacy, at the ConEC’s request. The Supreme Court later upheld the Court of Appeal’s judgment.

Law – Article 3 of Protocol No. 1

The cancellation of the applicant’s registration as a candidate for the parliamentary elections had amounted to an interference of his right to stand for election. The interference had been prescribed by law and had pursued the legitimate aim of ensuring equal and fair conditions for all candidates during the electoral campaign.

(i) Whether domestic procedures had contained sufficient safeguards against arbitrariness

The circumstances of the case and the complaint raised required a review of all the proceedings leading to and including the disqualification proceedings.

In the proceedings before the ConEC, the applicant had not been afforded sufficient procedural safeguards. The ConEC had taken all his decisions in the absence of the applicant, without hearing from him beforehand. The applicant had not been informed of the relevant ConEC meetings in advance and he had not been given an opportunity to challenge the evidence used against him, depriving him of the possibility to adequately defend his position before the ConEC. Moreover, copies of the ConEC decisions and other relevant documents had been given to him with significant delays of several days. This had deprived the applicant of the opportunity to adequately prepare his appeals within the maximum three-day statutory period for lodging appeals against ConEC decisions.

Furthermore, when examining the applicant’s appeals against the ConEC decision, as well as in the judicial proceedings concerning the administrative offence, the domestic courts had not addressed the applicant’s repeated arguments concerning the above-mentioned procedural deficiencies in the ConEC proceedings. Likewise, those arguments had also been raised by the applicant but not given due consideration by the Court of Appeal and the Supreme Court in the subsequent proceedings concerning the cancellation of the applicant’s candidacy.

(ii) Whether domestic courts had adequately assessed the evidence serving as the basis for the applicant’s disqualification

Throughout the entirety of the proceedings, neither the ConEC nor the domestic courts had adequately assessed the evidence serving as the basis for the applicant’s disqualification as a candidate or the applicant’s arguments raised in his defence.

As to the election posters, the applicant had noted, in all sets of proceedings, that they had been fake and that they had contained numerous incorrect data concerning his personal and career details, which in itself had been evidence that they could not have been made by him and that they had been made by someone who had not been on his campaign staff. However, this argument had never been given any response or consideration by the electoral authorities or the courts.

Only one witness statement had provided some detail as to who had allegedly been behind the posters’ dissemination. He had stated that someone, identified by the name of Vahid, had introduced himself as the applicant’s electoral representative and had asked for his assistance in disseminating the posters, giving him money in exchange and promising more in the future. However, that witness statement alone could not have proved that Vahid had been acting on the applicant’s instructions or had authority to act on his behalf, and there had existed no other evidence linking the applicant to that person. Moreover, despite the applicant’s repeated and insistent arguments that there had been no person named Vahid on his campaign staff, the domestic courts had never attempted to either investigate that matter further or to provide a reasoned response to the applicant’s arguments.

In sum, the domestic procedures resulting in the applicant’s disqualification from the election had not afforded him sufficient safeguards against arbitrariness at any stage of the proceedings and the domestic authorities’ decisions had lacked sufficient reasoning and adequate assessment of the evidence to establish his responsibility for the misconduct attributed to him.

Conclusion: violation (unanimously).

The Court also found, unanimously, that the respondent State had failed to comply with its obligations under Article 34 concerning the seizure from the applicant’s office of the entire case file relating to his present application before the Court.

Article 41: EUR 4,500 in respect of non-pecuniary damage.

(See also Tănase v. Moldova [GC], 7/08, 27 April 2010, Information Note 129; Paksas v. Lithuania [GC], 34932/04, 6 January 2011, Information Note 137; Orujov v. Azerbaijan, 4508/06, 26 July 2011; and Davydov and Others v. Russia, 75947/11, 30 May 2017, Information Note 207)

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This summary by the Registry does not bind the Court.

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