FIRST SECTION
Application no. 8055/11
Dunyakhanim JARULLAYEVA
against Azerbaijan
lodged on 22 January 2011
STATEMENT OF FACTS
The applicant, Ms Dunyakhanim Jarullayeva, is an Azerbaijani national, who was born in 1960 and lives in Baku. She is represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was nominated by a coalition of the Popular Front and Müsavat parties to stand as one of its candidates in the parliamentary elections of 7 November 2010 and applied for registration as a candidate in the single-mandate Ismayilli Electoral Constituency No. 86.
As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on 2 October 2010 the applicant submitted to the Constituency Electoral Commission (“the ConEC”) twelve signature lists containing 586 voter signatures in support of her candidacy.
A. Refusal to register the applicant as a candidate
By a decision of 7 October 2010, the ConEC refused the applicant’s request for registration as a candidate.
On 9 October 2010 the applicant was given a copy of the extracts of the ConEC decision of 7 October 2010, and a copy of the protocol of verification of the signature lists submitted by the applicant (imza vərəqlərindəki imzaların düzgünlüyünün yoxlanması barədə protokol; “the Results Protocol”), issued by the ConEC “working group” which conducted the verification.
According to the above documents, the applicant’s registration request was rejected in accordance with Article 60 of the Electoral Code, because only 429 out of the 586 voter signatures submitted by the applicant were found to be valid, and the remaining 157 were considered invalid for the following reasons: (a) 39 signatures were “repeat”, or falsified, signatures (in other words, were executed by one person in the name of several other persons); (b) 90 signatures were obtained from citizens “by deceptive means”; and (c) 28 signatures belonged to persons whose identity cards’ terms of validity had expired.
B. Decision of the Central Electoral Commission
The applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision of 7 October 2010. She complained, inter alia, that:
(a) the findings of the ConEC “working group” that such a large number of signatures were invalid were factually wrong, unsubstantiated, and arbitrary. In particular, the finding that some voters had been deceived in order to obtain their signatures was unsubstantiated and unsupported by any evidence. Moreover, there were no specialised hand-writing experts among the members of the ConEC “working group” and, therefore, its findings concerning the authenticity of some signatures were highly subjective and arbitrary;
(b) the ConEC decision to declare the signatures invalid was arbitrary and in breach of the substantive and procedural requirements of the law. Relying on Articles 60.2.2, 60.4 and 58.2 of the Electoral Code, the applicant 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 the applicant’s case, the ConEC declared invalid a large number of signatures on the basis of rectifiable errors, without informing her in advance and without giving her an opportunity to rectify them;
(c) the procedure followed by the ConEC also breached other requirements of the Electoral Code. Contrary to the requirements of Article 59.3, the applicant was not informed in advance of the time and place of the examination of the signature lists and her presence was not ensured. Contrary to the requirements of Article 59.13 of the Electoral Code, the applicant was 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 applicant’s registration request.
On 14 October 2010 an expert of the CEC “working group” issued an opinion stating that, according to the Results Protocol of the examination of the signature lists by the CEC “working group” (not available in the case file), 198 out of 586 signatures submitted by the applicant were invalid.
On the same day, 14 October 2010, the CEC rejected the applicant’s appeal, noting that its own “working group” had examined the signature lists and found that 198 signatures were invalid. It decided to uphold the ConEC’s decision to refuse the applicant’s registration.
It is unclear when the above documents were made available to the applicant.
C. Appeals lodged with the domestic courts
On 16 October 2010 the applicant lodged an appeal against the CEC decision with the Baku Court of Appeal. She reiterated her complaints made before the CEC concerning the ConEC decision and procedures. Relying on a number of provisions of the domestic law and on Article 3 of Protocol No. 1 to the Convention, she claimed that her right to stand for election was breached. Without advancing any specific complaints about the CEC decision and procedures, she requested the court to quash the CEC decision of 14 October 2010 because it had upheld the wrongful ConEC decision.
By a judgment of 25 October 2010, the Baku Court of Appeal rejected the applicant’s appeal, finding that the signature lists had been examined by the electoral commissions in accordance with the procedure specified by law and that the applicant’s complaints about the unlawfulness and arbitrariness of the procedure and the electoral commissions’ decisions were ill-founded. The court accepted the applicant’s argument that the ConEC’s initial finding that 90 signatures were obtained “by deceptive means” was unsubstantiated, but noted that the subsequent CEC examination had revealed a greater number of signatures which were invalid on other grounds. In particular, having regard to the documents submitted by the CEC, the court noted that the CEC “working group” had conducted a new examination of the signature lists and found that a total of 240 signatures (consisting of 50 separate groups) had been executed by the same persons in the name of other persons, and that 50 of those signatures were considered valid (as the first signature within a group) and the remaining 190 invalid. Eight other signatures were found to be invalid for other reasons (such as wrong or incomplete personal information in respect of the voter), bringing the total to 198 invalid signatures. As a result, the number of valid signatures fell below the minimum of 450 required by law. As for the applicant’s argument that she had not been informed of the finding of errors in signature lists in advance in accordance with Articles 60.2.2, 60.4 and 58.2 of the Electoral Code, the court noted that the requirements of the Electoral Code in this respect applied only when errors were rectifiable, but in the applicant’s case the majority of shortcomings found (190 falsified signatures) were not rectifiable.
On 26 October 2010 the applicant lodged an appeal with the Supreme Court. She reiterated her complaints concerning the ConEC decision and procedures. She further complained about the CEC procedures: in particular, she noted that, contrary to the requirements of the law, her presence at the CEC meeting of 14 October 2010 had not been ensured and that the CEC decision was unsubstantiated. She further complained that the examination of her appeal by the Baku Court of Appeal had been ineffective, that the court had not examined evidence presented by her and that its judgment was unsubstantiated.
By a decision of 1 November 2010, the Supreme Court rejected the applicant’s appeal, reiterating the Baku Court of Appeal’s reasoning.
COMPLAINTS
Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicant complains that her right to stand as a candidate in free elections and her right to an effective remedy were breached, because she was arbitrarily disqualified from running for election. In particular, the procedures for verification of voter signatures in support of her candidacy and for examination of her 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.
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 candidates’ eligibility contain sufficient safeguards to prevent arbitrary decisions? The Government are requested to submit copies of all documents of the electoral commissions’ and their working groups’ concerning the applicant’s case, indicating, where possible, the date each document was made available to the applicant.
2. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 3 of Protocol No. 1, as required by Article 13 of the Convention?
3. 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.
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