Communicated on 9 December 2013
FIRST SECTION
Application no. 36503/11
Fuad Ali Oglu GAHRAMANLI and others against Azerbaijan
and 5 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Azerbaijani nationals. 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 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.
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 (except application no. 42345/11), the Supreme Court dismissed the applicants’ appeals largely reiterating the Baku Court of Appeal’s reasoning. Also, in applications nos. 36503/11, 37614/11 and 41066/11, the Supreme Court 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. Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicants complain 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 in applications nos. 36503/11, 37614/11 and 41066/11 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 application no. 36503/11 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. 36503/11, 39042/11 and 42360/11 also complain under Article 14 of the Convention, in conjunction with the above complaints, that candidates nominated by opposition parties, 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
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. Application no. 36503/11 (Gahramanli and Others): 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. 36503/11 (Gahramanli and Others), 39042/11 (Israfil) and 42360/11 (Gambar): Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their political affiliation, contrary to Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1?
3. Application no. 36503/11 (Gahramanli and Others): The second applicant, Mr Mammadli, is requested to complete his personal information (in particular, his date of birth).
4. Application no. 37614/11 (Shukurov): The parties are requested to submit copies of: (1) the applicant’s complaint to the CEC submitted on 10 November 2010; and (2) the Baku Court of Appeal’s judgment of 24 November 2010.
5. Application no. 42345/11 (Geybullayev): The parties are requested to submit copies of: (1) the applicant’s complaint to the CEC submitted on 10 November 2010; and (2) any decisions delivered by the ConEC both prior to and after election day.
6. Application no. 42360/11 (Gambar): The parties are requested to submit a copy of the CEC decision of 30 October 2010.
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
36503/11
01/06/2011
Fuad GAHRAMANLI
1975
Mehdiabad, Absheron Region
Zalimkhan MAMMADLI
Baku
Namizad SAFAROV
1955
Baku
Hafiz HASANOV
Khatai Third Electoral Constituency No. 33, nominated by, respectively:
- Mr Gahramanli : the coalition of the Popular Front Party (PFPA) and Müsavat Party (PFPA-Müsavat coalition);
- Mr Mammadli : the “Classic” Popular Front Party (Classic PFPA);
- Mr Safarov : the Karabakh Election Bloc.
According to the applicants, complaint not examined by ConEC
21/11/2010
Baku Court of Appeal judgment of 26/11/2010;
Supreme Court decision of 06/12/2010
37614/11
01/06/2011
Aydin SHUKUROV
1959
Baku
Intigam ALIYEV
Zangilan-Gubadly Electoral Constituency No. 125, nominated by the Classic PFPA
N/A
20/11/2010
Baku Court of Appeal judgment of 24/11/2010;
Supreme Court decision of 01/12/2010
39042/11
02/06/2011
Ikram ISRAFIL
1964
Sumgayit
Ruslan MUSTAFAZADE
Sumgayit First Electoral Constituency No. 41, self-nominated
11/11/2010
20/11/2010
Baku Court of Appeal judgment of 24/11/2010;
Supreme Court decision of 01/12/2010
41066/11
01/06/2011
Panah HUSEYN
1957
Baku
Intigam ALIYEV
Nasimi Second Electoral Constituency No. 22, nominated by the Classic PFPA
11/11/2010
21/11/2010
Baku Court of Appeal judgment of 25/11/2010;
Supreme Court decision of 01/12/2010
42345/11
26/05/2011
Adil GEYBULLAYEV
1962
Baku
Intigam ALIYEV
Shaki Villages Second Electoral Constituency No. 115, nominated by the PFPA-Müsavat coalition
According to the applicant, complaint not accepted and not examined by ConEC
19/11/2010
Baku Court of Appeal judgment of 22/11/2010;
Supreme Court decision of 26/11/2010
42360/11
25/05/2011
Isa GAMBAR
1957
Baku
Intigam ALIYEV
Yasamal First Electoral Constituency No. 15, nominated by the PFPA-Müsavat coalition
11/11/2010
20/11/2010
Baku Court of Appeal judgment of 25/11/2010;
Supreme Court decision of 01/12/2010
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