CASE OF GASIMLI AND OTHERS v. AZERBAIJAN

FIFTH SECTION

CASE OF GASIMLI AND OTHERS v. AZERBAIJAN

(Applications nos. 25330/11, 25340/11, 25345/11, 25361/11 and 25645/11)

JUDGMENT

STRASBOURG

17 December 2015

This judgment is final. It may be subject to editorial revision.

In the case of Gasimli and Others v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Faris Vehabović, President,
Khanlar Hajiyev,
Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 1 December 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in five applications (nos. 25330/11, 25340/11, 25345/11, 25361/11 and 25645/11) 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 five Azerbaijani nationals, Mr Ali Salah oglu Gasimli, Mr Tazakhan Maharram oglu Miralamli, Mr Parviz Kamran oglu Hashimov, Mr Natig Mehman oglu Jafarov and Mr Eyyub Umud oglu Umudov (“the applicants”), on various dates in 2011 (see Appendix).

2. The applicants were represented by Mr H. Hasanov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. On 24 June 2013 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants’ dates of birth and places of residence are given in the Appendix.

5. The applicants stood as candidates in the parliamentary elections of 7 November 2010 and applied for registration as candidates in various single–mandate electoral constituencies (see Appendix). Mr Natig Jafarov (application no. 25361/11) was self-nominated, while Mr Ali Gasimli, Mr Tazakhan Miralamli, Mr Parviz Hashimov and Mr Eyyub Umudov (applications nos. 25330/11, 25340/11, 25345/11 and 25645/11 respectively) were nominated by the coalition of the Popular Front and Müsavat parties.

6. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, the applicants on various dates submitted sheets containing the signature of more than 450 voters collected in support of their candidacy to their respective Constituency Electoral Commissions (“ConECs”).

7. Before a decision by a ConEC on registering an applicant as a candidate, the signature sheets and the other registration documents submitted by the applicants had first to be verified by special working groups (işçi qrupu) established by the ConECs. None of the applicants were invited to participate in the examination of their sheets of signatures by the ConEC working groups.

8. The ConECs on various dates (see Appendix) issued decisions to refuse the applicants’ requests for registration as a candidate after the ConEC working groups had found that some of the voter signatures were invalid and that the remaining valid signatures had numbered fewer than 450. Signatures were found to be invalid on several grounds in each case, including: (a) falsified or repeat signatures (“signatures made repeatedly by the same individuals who had already signed sheets in the name of other individuals”); (b) incorrect personal information on voters (birth date, identity card number, and so on); (c) signatures by persons whose identity cards had expired; (d) signatures belonging to voters registered outside the constituency; (e) uncertified corrections in signature sheets; (f) signatures claimed to have been obtained “by deceptive means”; and (g) unspecified “other grounds”.

9. None of the applicants were invited to the ConEC meetings where decisions to refuse their requests for registration were taken. In each case, despite the requirements of the law, all the relevant working group documents (expert opinions, minutes of the meeting, records and tables of the results of the examination), as well as the ConEC decision itself, were only made available to the applicants after the decision to refuse their registration had been taken. In many cases, some of the documents were never made available to the applicants or were only made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal.

10. Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decisions. They made some or all of the following complaints:

(a) the findings of the ConEC working groups that such large numbers of signatures were invalid had been factually wrong, unsubstantiated, and arbitrary. Some of those findings of fact could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. However, the ConECs had not taken any steps to corroborate their findings with any reliable evidence, such as contacting and questioning a number of voters randomly selected from the group whose signatures were suspected of being false. There were no specialist handwriting experts among the members of the ConEC working groups and therefore their findings on the authenticity of some signatures had been highly subjective and arbitrary;

(b) the ConEC decisions to declare the signatures invalid had been arbitrary and in breach of the substantive and procedural requirements of the law. Relying on various provisions of the Electoral Code, the applicants argued that unintentional and rectifiable errors in the signature sheets could not serve as a reason to declare a voter signature invalid. If the errors found could be rectified by making the necessary corrections, the Electoral Code required the ConEC to notify the particular candidate of this within twenty‑four hours and to provide him or her with an opportunity to make corrections in the documents before deciding on his or her registration as a candidate. The ConECs had, however, declared large numbers of signatures invalid in the case of each applicant on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to make the necessary corrections;

(c) the procedure followed by the ConECs had also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants had not been informed in advance of the time and place of the examination of the signature sheets and their presence had not been ensured. Contrary to Article 59.13 of the Electoral Code, the applicants had also not been provided with a copy of the minutes of the examination of the validity of the signature sheets at least twenty-four hours prior to the ConEC meeting dealing with their respective requests for registration. Subsequently, none of the applicants had been invited to the ConEC meetings, which had deprived them of the opportunity to argue for their position;

(d) some of the grounds for invalidation were not provided by law and therefore to declare signatures invalid on those grounds had been unlawful. For example, the Electoral Code did not allow the invalidation of a signature merely because the voter’s identity document had recently expired. Likewise, it had been unlawful to invalidate signatures on unspecified and unexplained “other grounds”, because the Electoral Code provided for an exhaustive list of clear grounds for declaring signatures invalid and did not give electoral commissions any discretionary power to introduce any other grounds for that purpose;

(e) in some cases, various local public officials and police officers had applied undue pressure on voters or signature collectors to “withdraw” their signatures on the grounds that they had been tricked to sign in the candidate’s favour “by deceptive means”.

11. Enclosed with their complaints to the CEC, some of the applicants submitted statements by a number of voters affirming the authenticity of their signatures. However, those statements were not taken into consideration by the CEC.

12. The CEC arranged for another examination of the signature sheets by members of its own working group. None of the applicants was invited to participate in that examination process. The CEC working group found in each case that large numbers of signatures were invalid and that the remaining valid signatures were below the minimum required by law.

13. In each case, the number of signatures found to be invalid by the CEC working group differed from the number given by the particular ConEC working group, with the differences often being significant. Furthermore, in almost every case, the grounds for declaring signatures invalid given by the CEC had been different from the grounds given for the same signature sheets by the ConEC. In most cases a certain number of the total signatures were also declared invalid on the grounds that they had “appeared” to have been falsified, that is, “made by the same person in the name of other people” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”).

14. On various dates, the CEC also rejected the applicants’ complaints (see Appendix). None of the applicants were invited to attend the CEC meeting dealing with their complaint. Moreover, in each case, all the relevant CEC documents (including the working group documents) were only made available to the applicants after the CEC decision had been taken, while in some cases such documents were never given to them at all, or were given as late as at the stage of judicial appeal proceedings.

15. On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the decisions of the electoral commissions. They reiterated the complaints they had made before the CEC concerning the ConEC decisions and procedures. They also raised some or all of the following complaints concerning the CEC’s decisions and procedures:

(a) contrary to the requirements of electoral law, the CEC had failed to notify them of its meetings and ensure their presence during the examination of the signature sheets and their complaints;

(b) contrary to the requirements of electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to mount an effective challenge to the CEC decisions;

(c) the decisions of the electoral commissions had been based on expert opinions that had contained nothing more than conjecture and speculation (for example, that the signatures had “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts;

(d) in those cases where the applicants had submitted additional documents in support of their complaints, the CEC had ignored those submissions and failed to take them into account.

16. Relying on a number of provisions of domestic law, and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election had been infringed.

17. On various dates (see Appendix), the Baku Court of Appeal dismissed appeals by the applicants, finding that their arguments were irrelevant or unsubstantiated and that there were no grounds for quashing the decisions of the CEC.

18. The applicants lodged cassation appeals with the Supreme Court, reiterating their previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the cases and had delivered unreasoned judgments.

19. On various dates (see Appendix), the Supreme Court dismissed the applicants’ appeals as unsubstantiated, without examining their arguments in detail, and found no grounds to doubt the findings of the electoral commissions or of the Baku Court of Appeal.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS

20. The relevant domestic law and international documents concerning the rules and requirements for candidate registration, as well as observations made during the 2010 parliamentary elections in Azerbaijan, are summarised in Tahirov v. Azerbaijan (no. 31953/11, §§ 23-31, 11 June 2015).

THE LAW

I. JOINDER OF THE APPLICATIONS

21. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

II. THE GOVERNMENT’S REQUEST FOR THE APPLICATIONS TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION

22. On 16 September 2014 the Government submitted unilateral declarations with a view to resolving the issues raised by the present applications. They further requested that the Court strike the applications out of the list of cases in accordance with Article 37 of the Convention.

23. The applicants disagreed with the terms of the unilateral declarations and requested the Court to continue its examination of the applications.

24. Having studied the terms of the Government’s unilateral declarations, the Court considers – for the reasons stated in the Tahirov judgment (ibid., §§ 33-40), which are equally applicable to the present cases and from which the Court sees no reason to deviate – that the proposed declarations do not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the present applications.

25. Therefore, the Court refuses the Government’s request for it to strike the applications out of its list of cases under Article 37 of the Convention, and will accordingly pursue its examination of the admissibility and merits of the cases.

III. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION

26. The applicants complained under Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention that their right to stand as a candidate in free elections had been violated because their requests for registration as candidates had been refused arbitrarily. The Court considers that this complaint falls to be examined only under Article 3 of Protocol No. 1 to the Convention and that no separate examination is necessary under Article 13 (compare Namat Aliyev v. Azerbaijan, no. 18705/06, § 57, 8 April 2010). Article 3 of Protocol No. 1 to the Convention 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

27. 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

28. The applicants submitted that, contrary to the requirements of Article 59.3 of the Electoral Code, they had not been informed about the time of the ConEC working group meetings in advance and had not been given the opportunity to attend the meeting. Contrary to the requirements of Article 59.13 of the Electoral Code, the working group documents with the results of the examination of the signature sheets had also not been made available to them prior to the ConEC meeting dealing with their registration requests. Therefore, they had been deprived of the opportunity to provide the necessary explanations to working group members in order to dispel any doubts about the authenticity of disputed signatures and to correct any shortcomings found by the working group experts in the signature sheets.

29. Most importantly, in the applicants’ view, the decisions of the electoral commissions to declare some of the signatures invalid were for various reasons substantively incorrect, unsubstantiated or arbitrary. Some of the working groups’ factual findings had been wrong and could easily have been rebutted by simply contacting the voter in question and confirming the authenticity of his or her signature. In particular, it was not clear how the commissions and their experts had concluded that a number of signatures had been falsified. There were no specialist handwriting experts among the working-group members and, therefore, their findings that large numbers of signatures were inauthentic had been highly subjective and arbitrary. However, the electoral commissions had relied on the working‑group expert opinions without conducting any further investigation to conclusively establish the authenticity of the impugned signatures.

30. The applicants further noted that their appeals before the CEC and the domestic courts had not been examined in an impartial manner and that their arguments had not been addressed.

31. The Government submitted that the Contracting States enjoyed a wide margin of appreciation under Article 3 of Protocol No. 1 in establishing conditions for exercising the right to stand for election. The requirement to collect at least 450 signatures in support of a candidate had a legitimate aim of reducing the number of fringe candidates and avoiding “overcrowded” lists of registered candidates in order to prevent confusion among the electorate.

32. The Government argued that the domestic electoral law contained sufficient safeguards preventing the adoption of arbitrary decisions to refuse registration. Firstly, signature sheets were examined by working groups specially created by electoral commissions in accordance with Article 59.2 of the Electoral Code. These working groups consisted of experts and “specialists” of the relevant State authorities, most of whom were employees of the Centre of Forensic Science of the Ministry of Justice, the Ministry of the Interior, the State Register of Immovable Property and other agencies. Before taking up their duties as working group members, they had been trained by experts with the “appropriate knowledge and experience in the relevant field”. Secondly, the electoral law required that a working group meeting had to be open to the public, that the nominated candidate be given the opportunity to attend if he or she wished to do so, and that the working group’s documents on the results of examination of signature sheets be made available to the nominated candidate twenty-four hours before the electoral commission met to decide whether to register the candidate. Thirdly, the law required the working group to indicate the basis for invalidating signatures. Fourthly, the nominated candidate had a right to lodge appeals with the CEC and courts against a decision refusing the registration. All of the above combined to form a sufficient body of safeguards preventing arbitrary refusals to register candidates.

33. The Government submitted that in the present case, both the ConEC and CEC working groups had found that large numbers of signatures collected in support of the applicants were invalid. Therefore, the decisions to refuse registration had been justified, owing to the applicants’ failure to produce at least 450 valid signatures in their support. In their appeal to the Baku Court of Appeal, in which they had challenged the findings of the electoral commissions’ working groups, the applicants had failed to request that the court order an expert examination by a graphologist. Both the Baku Court of Appeal and the Supreme Court had correctly concluded that there were no reasons to doubt the findings of the electoral commissions’ working groups.

2. The Court’s assessment

34. The Court refers to the summaries of its case-law made in the Tahirov judgment (cited above, §§ 53-57), which are equally pertinent to the present applications.

35. For the purposes of the present complaint, the Court is prepared to accept the Government’s submission that the requirement for collecting 450 supporting signatures for nomination as a candidate pursued the legitimate aim of reducing the number of fringe candidates.

36. It remains to be seen whether, in the present case, the procedures for monitoring compliance with this eligibility condition were conducted in a manner affording sufficient safeguards against an arbitrary decision.

37. Having regard to the material in the case files and the parties’ submissions, the Court notes that the issues raised by the present complaint are essentially the same as those examined in the Tahirov judgment. The facts of both the Tahirov case and the present case are similar to a significant degree. The Court considers that the analysis and conclusions it made in the Tahirov judgment also apply to the present case. In particular, the Court noted the existence of serious concerns regarding the impartiality of the electoral commissions, a lack of transparency in their actions, and various shortcomings in their procedures (ibid., §§ 60-61); a lack of clear and sufficient information about the professional qualifications and the criteria for the appointment of working-group experts charged with the task of examining signature sheets (ibid., §§ 63-64); failure by the electoral commissions and courts to take any further investigative steps to confirm the experts’ opinions on the authenticity or otherwise of signatures (ibid., § 65); systematic failure by the electoral commissions to abide by a number of statutory safeguards designed to protect nominated candidates from arbitrary decisions (ibid., §§ 66-68 and 69); failure by the electoral commissions and courts to take into account the relevant and substantial evidence submitted by the candidate in an attempt to challenge the findings of the working‑group experts on the authenticity or otherwise of signatures (ibid., § 69); and the failure by the domestic courts to deal with appeals in an appropriate manner (ibid., § 70). Having regard to the above, the Court found that, in practice, the applicant in the Tahirov judgment had not been afforded sufficient safeguards to prevent an arbitrary decision to refuse his registration as a candidate.

38. Having regard to the facts of the present case and their clear similarity to those of the Tahirov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present case each applicant’s right to stand as a candidate was breached for the same reasons as those outlined above.

39. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

40. The applicants in applications nos. 25330/11, 25340/11, 25345/11 and 25645/11 also complained under Article 14 of the Convention, in conjunction with the above complaint, that their electoral rights had been breached as part of a series of deliberate and unlawful practical measures implemented by the Government, and which were aimed at restricting the participation of the political opposition in the elections and denying its candidates equal status to pro-Government candidates. Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

41. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

42. However, having regard to its above finding in relation to Article 3 of Protocol No. 1, the Court considers that it is not necessary to examine whether in these cases there has been a violation of Article 14 (compare Tahirov, cited above, § 75).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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

44. Each applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.

45. In connection with application no. 25345/11, the Government noted that the claim was excessive and considered that EUR 7,500 would be a reasonable award in respect of non-pecuniary damage. The Government did not submit any comments in connection with the other four applications.

46. Ruling on an equitable basis, the Court awards each applicant the sum of EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

47. Each applicant also claimed EUR 1,600 for legal fees incurred before the domestic courts and before the Court.

48. In connection with application no. 25345/11, the Government accepted the applicant’s claim. The Government did not submit any comments in connection with the other four applications.

49. The Court notes that all the applicants were represented by the same lawyer, Mr H. Hasanov, in the proceedings before the Court and that substantial parts of the lawyer’s submissions in relation to the different applications were similar. Having regard to that circumstance, as well as to the documents in its possession and to its case-law, the Court considers it reasonable to award a total sum of EUR 5,000 to all five applicants jointly, covering costs under all heads, plus any tax that may be chargeable to the applicants.

C. Default interest

50. The Court considers it appropriate that the default interest rate 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,

1. Decides to join the applications;

2. Rejects the Government’s request to strike the applications out of the Court’s list of cases;

3. Declares the applications admissible;

4. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention;

5. Holds that there is no need to examine the complaint under Article 14 of the Convention raised by the applicants in applications nos. 25330/11, 25340/11, 25345/11 and 25645/11;

6. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Azerbaijani new manats at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicants, to all five applicants jointly, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoFaris Vehabović
Deputy RegistrarPresident

APPENDIX

No

Application

no.

Lodged on

Applicant name

year of birth

place of residence

Represented by

Electoral constituency and the nominating body

Electoral commissions’ decisions

Domestic courts’ decisions

1

25330/11

13/04/2011

Ali GASIMLI

1962

Imishli

Hafiz HASANOV

Imishli-Beylagan Electoral Constituency No. 80, nominated by PFPA-Müsavat

ConEC decision of 13/10/2010;
CEC decision of 17/10/2010

Baku Court of Appeal judgment of 21/10/2010;
Supreme Court decision of 01/11/2010

2

25340/11

13/04/2011

Tazakhan MIRALAMLI

1970

Jalilabad

Hafiz HASANOV

Jalilabad Electoral Constituency No. 67, nominated by PFPA-Müsavat

ConEC decision of 12/10/2010;
CEC decision of 17/10/2010

Baku Court of Appeal judgment of 21/10/2010;
Supreme Court decision of 28/10/2010

3

25345/11

12/04/2011

Parviz HASHIMOV

1981

Hafiz HASANOV

Kapaz First (Ganja) Electoral Constituency No. 30, nominated by PFPA-Müsavat

ConEC decision of 30/09/2010;
CEC decision of 12/10/2010

Baku Court of Appeal judgment of 18/10/2010;
Supreme Court decision of 26/10/2010

4

25361/11

14/04/2011

Natig JAFAROV

1972

Baku

Hafiz HASANOV

Garadagh-Binagadi-Yasamal (Baku) Electoral Constituency No. 12, self-nominated

ConEC decision of 11/10/2010;
CEC decision of 18/10/2010

Baku Court of Appeal judgment of 22/10/2010;
Supreme Court decision of 01/11/2010

5

25645/11

15/04/2011

Eyyub UMUDOV

1963

Baku

Hafiz HASANOV

Hajigabul-Kurdamir Electoral Constituency No. 58, nominated by PFPA-Müsavat

ConEC decision of 13/10/2010;
CEC decision of 20/10/2010

Baku Court of Appeal judgment of 28/10/2010;
Supreme Court decision of 04/11/2010

 

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