Information Note on the Court’s case-law No. 133
August-September 2010
Kerimova v. Azerbaijan - 20799/06
Judgment 30.9.2010 [Section I]
Article 3 of Protocol No. 1
Free expression of opinion of people
Arbitrary invalidation of election results in a parliamentary constituency and ineffectiveness of judicial review: violation
Facts – The applicant stood as an opposition candidate in the November 2005 elections to Parliament. She received the largest number of votes in her constituency, having obtained 5,566 votes as compared to the 3,922 votes cast in respect of a candidate from the ruling political party, who came second. Following the official tabulation of the results the next day, she featured in the electoral protocol as “the elected candidate”. On 8 November 2005 the Central Election Commission invalidated the election results in the applicant’s constituency after finding that the protocols had been tampered with making it impossible to determine the will of the voters. The applicant appealed, arguing that the changes in the protocols had in effect reduced the number of votes recorded in her favour and had increased those cast in favour of the candidate immediately after her and that she remained the winner despite the changes. Her appeals were unsuccessful. In the meantime, two election officials were convicted of having falsified the election results in the applicant’s constituency, for the benefit of other candidates.
Law – Article 3 of Protocol No. 1: Even despite the fact that the irregularities had been made in an attempt to inflate the number of votes for the applicant’s opponents, the election results had still showed the applicant as a clear winner. Yet in their decision to invalidate the results, the election authorities had not given any reasons to explain why the alleged breaches had altered the outcome of the elections. Nor had they even considered the possibility of recounting the votes once the irregularities had been established. Furthermore, the Electoral Code prohibited the invalidation of election results at any level on the basis of a finding of irregularities committed for the benefit of candidates who lost the election. However, neither the electoral authorities, nor the domestic courts had endeavoured to determine in whose favour the alleged irregularities had worked. Despite the fact that the applicant had repeatedly raised these points in her appeals, the domestic courts had failed to adequately address them. Nor had they examined any primary evidence. The examination of the applicant’s appeals had therefore been ineffective. As a result, the authorities’ inadequate approach had brought about a situation where the election process in the entire electoral constituency had been single-handedly sabotaged by two electoral officials who had abused their position by making changes to a number of election protocols. By arbitrarily invalidating the election results because of those officials’ actions, the national authorities had essentially helped them to obstruct the election. Consequently, the decision to invalidate the election had been unsubstantiated and was in apparent breach of the procedure established by the domestic electoral law. This decision had arbitrarily infringed the applicant’s electoral rights by depriving her of the benefit of election to Parliament. It had also shown a lack of concern for the integrity and effectiveness of the electoral process which could not be considered compatible with the spirit of the right to free elections.
Conclusion: violation (unanimously).
Article 41: (a) Pecuniary damage – The applicant had submitted detailed information about the difference between the salaries she would have received as a member of parliament and her other income which she had been receiving during the relevant period, which information was in principle sufficient to calculate her “net loss”. Had the applicant become a member of parliament, she could have been expected to serve at least part of her tenure and receive certain income from her service. Accordingly, she had suffered certain pecuniary damage, although this damage could not be technically quantified in terms of monthly salaries for the entire term of service of a member of parliament. Making its assessment on an equitable basis, the Court awarded the applicant EUR 50,000.
(b) Non-pecuniary damage – EUR 7,500.
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This summary by the Registry does not bind the Court.
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