FIRST SECTION
Application no. 28465/11
Mohubbat JABBAROV against Azerbaijan
and 13 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, may be 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).
As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on various dates the applicants submitted to the respective Constituency Electoral Commissions (“the ConEC”) a number of signature lists containing collected voter signatures (in an amount exceeding 450) in support of their candidacy.
On various dates (see Appendix), the respective ConECs decided to refuse each applicant’s requests for registration as a candidate, owing to the finding by ConEC “working groups” that a number of submitted voter signatures were found to be invalid, and that the number of the remaining (valid) signatures in each case was below 450. Signatures were found to be invalid on several various grounds in each case, including such grounds as inter alia: (a) falsified signatures (“signatures executed by one person in the name of several other persons or by different persons in the name of one person”); (b) repeat signatures (it is not exactly clear in what way this ground differed from the previous ground); (c) incorrect personal information on voters (birth date, identity card number, and so on); (d) signatures by persons whose identity cards had expired; (e) signatures belonging to voters registered outside the constituency; (f) uncertified corrections in signature lists; (g) signatures claimed to have been obtained “by deceptive means”; (h) withdrawal by the signature collector of his or her own signature certifying a list, invalidating the entire list of 50 signatures; (i) unspecified “other grounds”; and so on. Additionally, in applications nos. 36702/11 and 66684/12, the relevant ConECs also found that the applicants had failed to declare some of their property. In application no. 36702/11, the ConEC also found that the applicant failed to provide full information on his personal income.
None of the applicants was invited to participate in the examination of signature lists by the ConEC “working groups”. Such examinations usually took place one or two days before the ConEC decision to refuse registration. Similarly, none of the applicants was invited to the relevant ConEC meetings where decisions to refuse their registration requests were taken (except the applicant in application no. 29808/11, who participated in the ConEC meeting). In all cases, despite the requirements of the law, all the relevant “working group” documents (expert opinions, minutes of the “working group” meetings, and tables of results of signature-list examination), as well as the relevant ConEC decision itself, were made available to the applicants after the decision to refuse registration had been taken. In many cases, some of the documents were never made available to the applicants or were made available to them as late as during the subsequent judicial proceedings in the Baku Court of Appeal.
Each applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the respective ConEC decision. They raised, inter alia, some or all of the following complaints:
(a) the findings of the ConEC “working groups” that such large numbers of signatures were invalid were factually wrong, unsubstantiated, and arbitrary. Some of those factual findings were simply wrong and could be easily 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 to be unauthentic. There were no specialised hand-writing experts among the members of the ConEC “working groups” and, therefore, their findings concerning the authenticity of some signatures were highly subjective and arbitrary;
(b) the ConEC decisions to declare the signatures invalid were 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 lists could not be a basis for declaring a voter signature invalid. If the errors found could be rectified by making relevant corrections, the Electoral Code required the ConEC to notify the relevant candidate of this within 24 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. However, in all cases, the ConECs declared invalid large numbers of signatures on the basis of easily rectifiable errors, without informing the candidates in advance and giving them an opportunity to rectify the errors;
(c) the procedure followed by the ConECs also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicants were not informed in advance of the time and place of the examination of the signature lists and their presence was not ensured. Contrary to the requirements of Article 59.13 of the Electoral Code, the applicants were not provided with a copy of the minutes of the examination of the validity of signature lists at least 24 hours prior to the ConEC meeting dealing with the applicants’ registration request. Subsequently, none of the applicants were invited to the ConEC meetings, depriving them of an opportunity to argue their position;
(d) some of the grounds for invalidation were not provided by law. Therefore, invalidation of signatures on these grounds was unlawful. For example, the Electoral Code did not allow for an invalidation of a signature merely because the relevant voter’s identity document had recently expired. Likewise, it was unlawful to invalidate signatures on unspecified and unexplained “other grounds”, because the Electoral Code provided for an exhaustive list of clear grounds for invalidation of signatures and did not give electoral commissions any discretionary power to introduce any other invalidity grounds;
(e) in some cases, various local public officials and police officers applied undue pressure on voters or signature collectors to “withdraw” their signatures on the ground that they had been allegedly tricked to sign in the candidate’s favour “by deceptive means”.
Enclosed with their complaints to the CEC, some of the applicants (for example, those in applications nos. 29781/11, 29808/11, 31953/11 and 31959/11) submitted affidavits by a number of voters confirming the authenticity of their signatures and other documents purporting to confirm authenticity of signatures. However, according to the applicants, these documents were not taken into consideration by the CEC.
The applicants in applications nos. 36702/11 and 66684/12 also complained that the ConEC findings that they had failed to provide full declaration of property and personal earnings had been wrong.
In all cases, the CEC conducted another verification of signature lists by members of its own “working group”. None of the applicants was invited to participate in the verification process. In all cases, the CEC “working group” found that a large number of signatures was invalid, making the total number of valid signatures insufficient.
In each case, the particular figures as to the number of signatures found to be invalid by the CEC “working group” differed from those indicated by the relevant ConEC “working group”, with differences often being significant. Furthermore, in almost all cases, the grounds for invalidation by the CEC were also different from the grounds for invalidation of the same signature lists by the ConEC. In the majority of cases, out of the total number of invalidated signatures, a certain number of signatures were invalidated on the ground that they “appeared” to have been falsified, that is, “executed by same person in the name of other persons” (“ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”).
In application no. 36702/11 the CEC, having found that the number of valid signatures was insufficient, also found that the applicant had nevertheless made a full and accurate declaration of property and earnings, while in application no. 66684/12 the CEC decision was silent as to the applicant’s failure to declare some of his private property.
On various dates, the CEC rejected the applicants’ complaints (see Appendix). None of the applicants was informed of the relevant CEC meeting in advance and, thus, their presence was not ensured. Moreover, in each case, all the relevant CEC documents (including the “working group” documents) were made available to the applicants only after the CEC decision, while in some cases such documents were never given to them or given as late as at the stage of judicial appeal proceedings.
On various dates, each of the applicants lodged an appeal with the Baku Court of Appeal against the electoral commissions’ decisions. They reiterated their complaints made before the CEC concerning the ConEC decisions and procedures. Moreover, they raised, inter alia, some or all of the following complaints concerning the CEC decisions and procedures:
(a) contrary to the requirements of the electoral law, the CEC failed to notify them of its meetings and ensure their presence during the examination of the signature lists and the examination of their complaints;
(b) contrary to the requirements of the electoral law, some or all of the relevant CEC documents had not been made available to them, depriving them of the opportunity to effectively challenge the CEC decisions;
(c) the electoral commissions’ decisions were based on “working group” opinions that contained nothing more than conjecture and speculation (that the signatures “appeared” (“ehtimal ki”) to have been falsified), instead of properly established facts;
(d) in those cases where the applicants had submitted additional documents and affidavits in support of their complaints, the CEC ignored those submissions and failed to take them into account.
Relying on a number of provisions of the domestic law and directly on Article 3 of Protocol No. 1 to the Convention, the applicants claimed that their right to stand for election was breached.
In applications nos. 28502/11, 30581/11, 31970/11, 31996/11, 32060/11 and 36702/11, upon examination of the applicants’ appeals, the Baku Court of Appeal ordered a forensic handwriting analysis of the applicant’s signature lists by a handwriting expert of the Forensic Expert Centre of the Ministry of Justice. On each such occasion, the expert examined all the signature lists containing hundreds of signatures and issued the final expert opinion within one calendar day (and in some cases, within several hours) after receiving the relevant documents from the court. According to the forensic relevant expert opinions, large numbers of signatures submitted by each applicant were invalid, bringing the total of the valid signatures to less than 450 required by law.
In other applications, the Baku Court of Appeal did not order a handwriting analysis. On various dates (see Appendix), the Baku Court of Appeal rejected the applicants’ appeals in all cases, finding that there were no reasons to doubt the conclusions concerning the validity of signatures, reached by the CEC in its respective decisions. In application no. 66684/12 the Baku Court of Appeal also found that the applicant had failed to declare some of his private property.
The applicants lodged cassation appeals with the Supreme Court, reiterating their complaints made before the electoral commissions and the Baku Court of Appeal. The applicants in applications nos. 28502/11, 30581/11, 31970/11, 31996/11, 32060/11 and 36702/11 also questioned the reliability of the forensic expert reports ordered by the Baku Court of Appeal, noting that the experts had issued their opinions within one day, which was a grossly inadequate amount of time for conducting a proper handwriting analysis of hundreds signatures.
On various dates (see Appendix), the Supreme Court rejected the applicants’ appeals, largely reiterating the Baku Court of Appeal’s reasoning.
COMPLAINTS
1. Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, all the applicants complain that their right to stand as a candidate in free elections and their right to an effective remedy were breached, because they were arbitrarily disqualified from running for election. In particular, the procedures for verification of voter signatures in support of their candidacy and for examination of their complaints lacked transparency and sufficient safeguards against arbitrariness, and the decisions of the electoral commissions and domestic courts were arbitrary and contrary to a number of requirements of the domestic electoral law. All the applicants, except those in applications nos. 30504/11, 31953/11, 31959/11 and 32060/11, also rely on Article 13 of the Convention in connection with this complaint.
2. The applicants in applications nos. 31953/11, 31959/11 and 32060/11 also complain under Article 14 of the Convention, in conjunction with the above complaint, that their electoral rights were breached as a part of the deliberate and unlawful practical measures implemented by the Government aimed at restricting the political opposition’s participation in the elections and denying its candidates equal conditions with pro-Government candidates.
3. The applicants in applications nos. 28465/11, 28502/11 and 31970/11 complain under Article 11 of the Convention that, as they were nominated by registered political parties, the requirement for them to collect at least 450 voter signatures in support of their candidacies was unnecessary in a democratic society and constituted an “additional restriction” on their freedom of association.
ITMarkFactsComplaintsEND
COMMON QUESTIONS
1. Has there been a breach of the applicants’ right under Article 3 of Protocol No. 1 to stand as candidates 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 candidates’ eligibility contain sufficient safeguards to prevent arbitrary decisions?
2. The parties are requested to submit detailed factual information concerning the methods of composition and functioning of the “working groups” at various electoral-commission levels (including the constituency electoral commission in the applicant’s constituency), the manner of selection and appointment of their members, as well as information as to whether their membership included any qualified experts and/or specialists (mütəxəssis) possessing expertise relevant to the tasks they were charged with. The parties are requested to inform the Court whether members of electoral commissions’ “working groups” had received any specialised training before their appointment and, if so, describe the types of trainings received.
CASE SPECIFIC QUESTIONS
1. Applications nos. 28465/11 (Jabbarov), 28502/11 (Vahid Jafarov), 29781/11 (Gaya Aliyev), 29808/11 (Shakir Mammadov), 30473/11 (Fuad Aliyev), 30581/11 (Dadashzade), 31970/11 (Razi Abasov), 31996/11 (Alayif Hasanov), 36702/11 (Behbudov) and 66684/12 (Intigam Aliyev): Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 3 of Protocol No. 1, as required by Article 13 of the Convention?
2. Applications nos. 31953/11 (Tahirov), 31959/11 (Yegana Hajiyeva) and 32060/11 (Khayyam Mammadov): Have the applicants suffered discrimination in the enjoyment of their electoral 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 to the Convention?
3. Applications nos. 28465/11 (Jabbarov), 28502/11 (Vahid Jafarov) and 31970/11 (Razi Abasov): Has there been a breach of the applicants’ rights under Article 3 of Protocol No. 1, on the account of the Electoral Code’s eligibility requirement for each party-nominated candidate to submit a minimum of 450 voter signatures in support of their nomination as a candidate?
4. Application no. 29781/11 (Gaya Aliyev): The applicant is requested to complete/update his personal information (in particular, his date of birth).
5. Application no. 30473/11 (Fuad Aliyev): The parties are requested to submit copies of the ConEC decision of 13 October 2010 and the CEC decision of 16 October 2010, as well as all related documents, opinions and results tables of the relevant commissions’ “working groups”.
6. Application no. 30581/11 (Dadashzade): The parties are requested to submit a copy of the handwriting expert report of 27 October 2010 (requested by the Baku Court of Appeal and issued by an expert of the Forensic Expert Centre of the Ministry of Justice).
7. Application no. 31953/11 (Tahirov): The parties are requested to submit copies of the ConEC decision of 11 October 2010 and all related documents, opinions and results tables of the relevant commission’s “working group”.
8. Application no. 31996/11 (Alayif Hasanov): The parties are requested to submit copies of the ConEC decision of 14 October 2010 and the CEC decision of 20 October 2010, as well as all related documents, opinions and results tables of the relevant commissions’ “working groups”. The parties are also requested to submit a copy of the handwriting expert report of 1 November 2010 (requested by the Baku Court of Appeal and issued by an expert of the Forensic Expert Centre of the Ministry of Justice).
9. Application no. 32060/11 (Khayyam Mammadov): The parties are requested to submit copies of the ConEC decision of 11 October 2010 and the CEC decision of 16 October 2010, as well as all related documents, opinions and results tables of the relevant commissions’ “working groups”.
10. Application no. 66684/11 (Intigam Aliyev): The parties are requested to submit copies of all documents, opinions and results tables of the CEC “working group”, related to the CEC decision of 16 October 2010.
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Electoral constituency and the nominating body
Electoral commissions’ decisions
Domestic courts’ decisions
28465/11
26/04/2011
Mohubbat JABBAROV
1958
Beylagan
Khalid BAGIROV
Beylagan Electoral Constituency No. 81, nominated by the Karabakh Election Bloc
ConEC decision of 03/10/2010;
CEC decision of 12/10/2010
Baku Court of Appeal judgment of 19/10/2010;
Supreme Court decision of 28/10/2010
28502/11
26/04/2011
Vahid JAFAROV
1955
Duyarli, Shamkir District
Khalid BAGIROV
Shamkir Villages Electoral Constituency No. 99, nominated by the Karabakh Election Bloc
ConEC decision of 12/10/2010;
CEC decision of 16/10/2010
Baku Court of Appeal judgment of 05/11/2010;
Supreme Court decision of 11/11/2010
29781/11
25/04/2011
Gaya ALIYEV
Astara
Intigam ALIYEV
Astara Electoral Constituency No. 77, nominated by the Islahat Election Bloc
ConEC decision of 06/10/2010;
CEC decision of 13/10/2010
Baku Court of Appeal judgment of 22/10/2010;
Supreme Court decision of 02/11/2010
29808/11
28/04/2011
Shakir MAMMADOV
1960
Sumgayit
Intigam ALIYEV
Sumgayit-Absheron Electoral Constituency No. 44, nominated by the “Classic” Popular Front Party
ConEC decision of 11/10/2010;
CEC decision of 16/10/2010
Baku Court of Appeal judgment of 19/10/2010;
Supreme Court decision of 28/10/2010
30473/11
28/04/2011
Fuad ALIYEV
1970
Baku
Intigam ALIYEV
Sabunchu Third Electoral Constituency No. 28, nominated by the Liberal Democratic Party
ConEC decision of 13/10/2010;
CEC decision of 16/10/2010
Baku Court of Appeal judgment of 23/10/2010;
Supreme Court decision of 28/10/2010
30504/11
02/05/2011
Tural ABBASOV
1982
Baku
Emin ASLANOV
Nasimi First Electoral Constituency No. 21, self-nominated
ConEC decision of 13/10/2010;
CEC decision of 18/10/2010
Baku Court of Appeal judgment of 26/10/2010;
Supreme Court decision of 03/11/2010
30581/11
04/05/2011
Amirulla DADASHZADE
1945
Baku
Intigam ALIYEV
Khazar Second Electoral Constituency No. 14, nominated by the coalition of the Popular Front Party (PFPA) and Müsavat Party (PFPA- Müsavat coalition)
ConEC decision of 12/10/2010;
CEC decision of 18/10/2010
Baku Court of Appeal judgment of 29/10/2010;
Supreme Court decision of 04/11/2010
31953/11
05/05/2011
Ogtay TAHIROV
1952
Sumgayit
Asabali MUSTAFAYEV
Sumgayit-Absheron Electoral Constituency No. 44, self-nominated
ConEC decision of 11/10/2010;
CEC decision of 17/10/2010
Baku Court of Appeal judgment of 23/10/2010;
Supreme Court decision of 02/11/2010 (sent to applicant on 09/11/2010)
31959/11
06/05/2011
Yegana HAJIYEVA
1976
Sumgayit
Asabali MUSTAFAYEV
Khankendi Electoral Constituency No. 122, self-nominated
ConEC decision of 11/10/2010;
CEC decision of 18/10/2010
Baku Court of Appeal judgment of 23/10/2010;
Supreme Court decision of 02/11/2010 (sent to applicant on 08/11/2010)
31970/11
07/05/2011
Razi ABASOV
1979
Javad, Sabirabad District
Khalid BAGIROV
Sabirabad First Electoral Constituency No. 63, nominated by the Karabakh Election Bloc
ConEC decision of 01/10/2010;
CEC decision of 12/10/2010
Baku Court of Appeal judgment of 29/10/2010;
Supreme Court decision of 03/11/2010 (sent to applicant on 10/11/2010)
31996/11
04/05/2011
Alayif HASANOV
1962
Zardab
N / A
Zardab-Ujar Electoral Constituency No. 92, self-nominated
ConEC decision of 14/10/2010;
CEC decision of 20/10/2010
Baku Court of Appeal judgment of 01/11/2010;
Supreme Court decision of 05/11/2010
32060/11
06/05/2011
Khayyam MAMMADOV
1981
Baku
Asabali MUSTAFAYEV
Jabrail-Gubadli Electoral Constituency No. 120, self-nominated
ConEC decision of 11/10/2010;
CEC decision of 16/10/2010
Baku Court of Appeal judgment of 30/10/2010;
Supreme Court decision of 05/11/2010 (sent to applicant on 10/11/2010)
36702/11
28/02/2011
Elchin BEHBUDOV
1960
Baku
Vafa ROVSHANOVA
Yasamal Third Electoral Constituency No. 17, self-nominated
ConEC decision of 11/10/2010;
CEC decision of 16/10/2010
Baku Court of Appeal judgment of 28/10/2010;
Supreme Court decision of 05/11/2010
66684/12
06/12/2010
Intigam ALIYEV
1962
Sumgayit
Self-represented
Sumgayit Third Electoral Constituency No. 43, self-nominated
ConEC decision of 11/10/2010;
CEC decision of 16/10/2010
Baku Court of Appeal judgment of 22/10/2010;
Supreme Court decision of 01/11/2010
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